t 


REPRISALS  IN  INTERNATIONAL  LAW 


By 

PAG  JIN  HO 

A.  B.  Fuhtan  University,  1920 
A.  B.  TBe  University  of  Washington,  1921 


THESIS 

SUBMITTED  IN  PARTIAL  FULFILLMENT  OF  THE  REQUIREMENTS 
FOR  THE  DEGREE  OF  MABTER  OF  ARTS  IN  POLITICAL  SCIENCE 
IN  THE  GRADUATE  SCHOOL  OF  THE  UNIVERSITY 
OF  ILLINOIS,  1922 


URBANA,  ILLINOIS 


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CONTEiifTS 


CHAPTER  I Page 

Introduction  1 

CHAPTER  II 

A Brief  Survey  of  the  Historical 

Development  of  Reprisals  11 

CHAPTER  III 

The  Value  of  Reprisals  1^7 

chapter  IV 

The  Justification  of  Reprisals 

in  Time  of  Peace  S3 

CHAPTER  V 

The  Justification  of  Rex)ri3al3 

in  Time  of  War  40 

Condlusion  75 

Bibliography  S2y 


Digitized  by  the  Internet  Archive 
in  2015 


https://archive.org/detaiis/reprisalsininterOOhopa 


1 

REPRISALS  IN  INTERNATIONAL  LAW 

CHAPTER  I 
Introduction 

This  thesis  conta,ins  five  chapters . Chapter  I is  a.n  intro- 
ductory chapter  in  which  the  definitions  of  reprisals,  the  differ- 
ence "between  reprisals  and  retorsion  and  the  classifications  of 
reprisa.ls  will  he  discussed.  In  chapter  II  a brief  survey  of  the 
historice.1  development  of  reprisals  will  he  given;  and  in  chapter 
III  the  value  of  reprisals  will  he  studied.  In  the  fourth  chapter 
the  question  of  the  justification  of  reprisals  in  time  of  peace 
will  he  examined  in  detail.  And  in  the  last  chapter  we  shall  go 
into  a full  discussion  of  the  justification  of  reprisals  in  war 
and  shall  sum  up  the  whole  subject  in  a conclusion. 

A.  The  Definitions  of  Reprisals 

That  reprisals  axe  an  interesting  and  important  subject  in 
international  law  cannot  be  disputed.  But  as  to  its  meaning,  the 
opinions  of  writers  are  so  various  that  a careful  exairiina-tion  is 
essential . 

In  the  first  place,  reprisals,  as  a forcible  measure  employed 
by  states  in  time  of  peace,  may  be  defined  as  the  siezure,  either 
at  sea  or  on  land,  of  ships  or  other  property  of  a foreign  sta.te 
or  its  subjects,  for  the  purpose  of  imposing  pressure  on  the  second 
state  for  the  redress  of  a wrong  being  done  by  it  or  by  its 
subjects;  or  for  the  purpose  of  subjecting  such  property  to  compen- 


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sat ion  in  value  for  the  wrong  done. 

For  such  purposes,  other  forms  of  reprisals  such  as  the 
temporary  occupation  of  a port,  the  seizure  of  custom  duties  or 

r' 

ej 

the  institution  of  a pacific  blockade,  ma.y  also  be  taken. 

But  we  must  bear  in  mind  that  the  things  seized  are  held 
subject  to  the  termination  of  the  controversy.  If  the  question  is 
settled  amicably,  the  ships  or  property  seized  are  restored;  and 
sometimes,  though  not  always,  the  state  in  whose  hand  the  things 
were  retained,  pays  for  the  delay  and  damage  that  have  resulted 
from  the  seizure.  On  the  other  hand,  if  war  is  the  only  solution 
of  the  dispute,  the  property  seized  is  good  as  a prize. 

Mr.  Oppenheim’s  definition  of  reprisals  is  in  considerable 
degree  similar  to  that  of  Mr.  Westla.ke  though  the  wording  of  one 
is  different  from  that  of  the  other,  Mr.  Oppenheim  entertains  the 
view  that,  "Reprisal  is  the  term  applied  to  such  injurious  and 
otherwise  internationally  illegal  acts  of  one  state  against 
another  a.s  are  exceptionally  permitted  for  the  purpose  of  compel- 
ling the  latter  to  consent  to  a satisfactory  settlement  of  a dif- 

3 

ference  created  by  its  own  international  delinquency." 

In  his  International  Public  Law,  Mr,  Hannis  Taylor  rege.rds 
reprisals  as  one  kind  of  positive  remedy  for  obteiining  redress.  He 
says,  "When  one  state  injures  another  either  directly  or  by  injur- 
ing or  permitting  an  injury  to  a citizen  of  the  other,  and  fails  or 
refuses  to  greut  redress  in  the  amicable  methods,  the  offended 
state  may  pursue  one  of  several  courses  not  necessarily  involving 

1 

Westlake,  International  Law,  Part  II,  7 
S 

Hershey,  The  Essentials  of  International  Public  Law,  344 
3 

Oppenheim,  International  Law,  Volume  2,  34  


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acknoYtTl edged  war."  According  to  his  idea,  such  remedies  may  he 
divided  into  negative  and  positive.  By  negative  remedy,  the  of- 
fended state  usually  expresses  displeasure  rather  than  exacting 
redress.  The  severance  of  diplomatic  or  commercial  relations,  and 
other  expressions  of  national  displeasure  belong  to  this  division. 
By  positive  remedy,  however,  the  offended  state  may  threaten  retali- 
at  ion,  or  assert  force  in  such  manner  as  to  bring  actual  war  into 
existence.  To  this  division  belong  embargoes  and  non-intercourse, 
retorsion,  reprisals,  sequestrations  and  pacific  blockades.  Repri- 
sal in  this  sense  is  nothing-  more  than  a mode  of  putting;  stress 

upon  an  offending  state  which,  though  falling  short  of  actual  war, 

5 

is  of  a violent  nature. 

This  view  is  more  clearly  presented  by  Mr.  Holland.  He  says 

that  reprisals  ordinarily  signify  a taking  back  of  property  of 

which  one  has  been  wrongfully  deprived,  such  as  acts  of  pressure 

put  by  one  state  upon  another  without  any  intention  to  bring  about 

6 

a war.  But  it  is  capable  of  being  taken  as  a challenge  to  fight. 

Reprisals  may  also  be  used  by  one  state  as  a means  of  retali- 
ation against  another  state  for  the  suspension  of  the  operation 
7 

of  treaties.  In  1760  when  Holland  repudiated  the  treaty  obliga- 
tion, under  which  she  promised  to  assist  England  during  the  time 
of  attack,  the  British  government  issued  reprisals  by  suspending 
all  particular  stipulations  concerning  the  freedom  of  navigation 
and  commerce  that  had  been  included  in  several  treaties  made 


4 

Taylor,  International  Public  Law.  431 

5 

Lawrence,  The  Principles  of  International  Law, § 136 

6 

Foulke,  International  Law,  Volume  2,  97,  N.IO 
7 

Hall,  International  Law.  (8th  Edition),  360 


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between  these  two  countries,  j 

One  authority  in  international  law  gives  his  view  of  reprisal  ii 
as  action  resorted  to  for  the  redress  of  injuries  inflicted  upon  j 
the  state,  in  its  collective  capacity,  or  upon  the  right  of  indiv-  j 
iduals  to  whom  the  state  gives  protection  in  return  for  their  al-  ' 

e 

legiance.  There  are  still  other  writers  who  hold  that  reprisals 

consist  in  the  recovering  of  what  is  our  own  by  force.  Either  one 

of  the  two  measures  may  be  adopted:  by  seizing  an  equivalent  or  | 

negatively  by  detaining  what  belonges  to  the  offending  state  againti 

9 

which  the  reprisals  are  issued. 

Moreover,  reprisals  may  also  be  defined  as  ”a  certain  kind 

of  an  act,  just  like  any  other  specific  act,  which  is  sometimes 

lawful  and  sometimes  unlawful,  according  to  international  law,  or 

perhaps  more  accurately,  an  act  restrained  by  the  international 

factors  of  conduct  within  limits  which  will  be  exceeded  only  when 

10 

dictated  by  the  self-interest  of  the  state,”  But  when  an  inter- 
national right  has  been  violated,  the  offended  state  may  a.dopt 

measures  of  retaliation  in  form  of  reprisals  in  order  to  obtain 

11 

redress  for  that  offence. 

Again,  Hr.  Wildman  interprets  the  right  of  reprisals  in  a 
very  peculiar  way.  He  says  that  reprisals  are  the  right  of  every 
sovereign  by  which  he  may  secure  justice  to  himself  or  to  his 
subjects  for  any  injury  committed  by  any  foreign  prince  or  subject 
in  a denial  of  justice,  and  that  the  right  consists  in  occupying 


6 

Hallsct,  International  Law,  (4th  Edition),  505 

9 

Woolsey,  International  Law,  (6th  Edition),  181 

10 

Foulke,  Intennational  Law,  Volume  II.  ^551 
vvilson.  International  Law . 231 


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5 

any  portion  of  the  territory  of  the  offending  state,  or  the  bodies 

13 

or  goods  of  any  of  its  subjects,  until  satisfaction  is  obtained. 

Finally,  reprisals  furnish  a rough  means  for  an  offended 

state  to  obtain  redress  for  injury  of  small  importance  after  having 

failed  to  make  ainicable  settlement.  It  also  allows  the  placing  of 

stress  upon  a weak  but  obstinate  state  that  commits  international 
13 

delinquency . 

B.  The  Difference  between  Reprisals  and  Retorsion 

Before  we  seek  to  imake  the  distinction  between  reprisals  and 
retorsion,  it  would  be  adviceable  to  first  find  out  the  meaning  of 
retorsion. 

In  general,  retorsion  is  an  action  taken  by  a state  for  the 

purpose  of  demanding  compensation  for  some  damage  suffered  through 

the  action  of  another  state  or  for  the  puropse  of  deterrinir  the 

14 

latter  from  continuing  the  action  complained  of.  It  is  also  an  act 

of  one  state  against  another  state  that  is  acting  in  an  unfriendly, 

though  peaceful  manner,  by  adopting  a similar  conduct  to  that 
15 

complained  of,  or,  to  state  more  clearly,  it  is  an  amicable  retali- 
ation by  means  of  which  a same  line  of  conduct  being  pursued  by  one 
state  may  be  followed  by  another  state  for  the  sake  of  redress. 

It  is  usually  resorted  to  for  the  adjustment  of  discrimin- 
atory legislation  or  administrative  action,  such  as  hostil  tariff, 
exclusion  or  unfair  treatment  of  foreigners  of  a particular 


IS 

Foulke,  International  Law,  Volume  II,  96,  Notes 

Hershey,  Essentials  of  International  Public  Law.  344 

14 

Westlake,  International  Law.  6 

15 

Lawrence,  The  Principles  of  International  Law,#  136 


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nationality,  or  denial  of  civil  rights  to  aliens. 

Thus,  30  far  as  aim  or  purpose  is  concerned,  reprisals  and 

retorsion  are  practically  the  same.  Both  of  them  are  means  of 

retaliation.  The  only  difference  oetween  them  is  to  he  found  in 

the  nature  of  the  act.  A reprisal  may  he  confined  to  the  seizure 

of  ships  or  other  property  belonging  to  the  offending  state  or  to 

her  citizen  within  or  without  the  jurisdiction;  while,  on  the 

other  hand,  "a  retorsion  may  he  confined  to  act  within  the  juris- 
17 

diction."  In  other  words,  the  application  of  reprisals  may  he 

18 

confined  to  legal  while  that  of  retorsion  to  political  difference. 

Reprisals  and  retorsion  are  further  distinguished  hy  Mr. 
Oppenheim  who  says,  "Whereas  retorsion  consists  in  retaliation  of 
discourteous,  unfriendly,  unfair,  and  inequitable  acts  hy  acts  of 
the  saine  or  the  similar  kinds,  and  has  nothing  to  do  with  inter- 
national delinquencies,  reprisals  are  otherwise  illegal  acts 
performed  hy  a state  for  the  purpose  of  obtaining  justice  for  an 

19 

international  delinquency  hy  taking  the  law  into  its  own  hands." 

Reprisals  also  differ  from  retorsion  both  in  kind  and  in 

degree.  Retorsion  is  resorted  to  when  a state  has  been  deprived  of 

imperfect  rights,  or  when  the  rules  of  comity  have  been  violated. 

Reprisals  are  resorted  to  when  perfect  rights  have  been  denied  or 

20 

when  justice  has  been  refused. 

Again,  Mr.  Moore,  the  great  American  jurist  and  writer  of 
international  law,  has  made  a sharp  distinction  between  reprisals 

^Hershey,  Essentials  o_f  International  Public  Law . § 321 
Foulke,  International  Law,  Volume  II,  110 

X w 

^Foulke,  International  Law,  Volume  II,  110,  N.4 

Oppenheim,  International  Law,  Volume  I,§  33 
20 

George  B.  Davis,  Element  of  I nt e mat i onal  Law . 265 


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7 

and  retorsion.  He  holds  that  'retorsion'  is  retaliation  in  kind, 

while  'reprisals'  consist  in  seizing  the  goods  of  the  subjects  of 

21 

a state  as  compensation  for  the  injury  received. 

C.  The  Classification  of  Reprisals 

Reprisals  have  been  classified,  according  to  their  origin,  by 
Kluber,  Wheaton  and  Phillimore  into  negative  and  positive.  They 
are  negative  reprisals  when  they  are  applied  to  the  case  of  a 
refusal  of  a right.  They  are  positive  reprisals,  when  they  are 
applied  to  the  case  of  an  injury.  The  same  classification  has  been 
made  based  upon  their  character  by  Field  and  Oppenheim.  They  say 
that  a negative  reprisal  consists  in  the  refusal  to  perform  such 
acts  as  are  obligatory  under  ordinary  circumstances.  To  refuse 
the  fulfilment  of  treaty  obligations  and  the  non-payment  of  debts 
are  examples.  While  a positive  reprisal  according  to  their  opini- 
ons consists  in  the  seizure  or  detention  of  persons  or  property 

23 

which  involves  an  international  delinquency. 

In  ordinary  language,  we  may  say  that  a negative  rer)risal 
consists  in  withholding  soxnething  which  the  state  is  legally 
obliged  to  give,  and  that  a positive  reprisal  in  the  seizing  of 
something  which  legally  belongs  to  the  other  state  or  Its  subjects. 
Some  writers  use  active  and  passive  instead  of  positive  and 
negative  without  changing  the  meaning  and  character. 

However  great  is  the  contradiction  between  these  two  classes, 
the  same  rules  are  applied  to  both  of  them,  that  is,  neither  one 

21 

Moore,  International  Law  Di.<?e3t,  Volume  VII,  119 
22  ^ 

Taylor,  International  Public  Law . 435,436  and  Oppenheim,  Inter- 
national^Law . Volume  II,  39 


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nor  the  other  would  be  resorted  to  until  there  is  a just  cause, 

S3 

nor  until  all  milder  means  for  settlement  have  proved  ineffective. 

Reprisals  are  also  classified  into  private  and  public. 

Private  reprisal  is  the  right  of  individuals  authorized  by  their 

state  by  Letters  of  Marque  to  pass  the  boundaries  of  another  state 

in  redress  for  injury.  Privateering  is  the  example  of  such  a class ; 

although  treated  by  England  as  piracy.  Public  reprisal  is  an  act 

of  the  state  ''through  its  own  agents,  on  its  own  waters,  on  the 

high  seas,  or  on  foreign  soil,  to  enforce  satisfaction  of  claims 

34 

out  of  the  goods  of  another  country," 

Reprisals  have  been  further  classified  into  special  and 

general.  Special  reprisals  are  measures  of  retaliation  "frequently 

resorted  to  in  the  Middle  Age,  and  sometimes  in  the  later  period, 

for  the  indemnification  of  private  individuals  for  injuries  and 

35 

loses  inflicted  on  them  by  subjects  of  other  nations,"  Letters  of 

t 

Marque  were  issued  in  such  cases  by  sovereign  to  his  peoples  who 
received  the  injuries.  They  were  authorized  by  such  a license  to 
set  out  and  capture  vessels  and  cargoes  of  the  offending  nationalit;i 
Even  after  such  private  warfare  was  regarded  as  an  outrageous  and 
unworthy  action,  a state  occasionally  sent  out  war  vessels  with  | 
instructions  to  capture  as  many  private  vessels  of  the  offending 
state  as  they  could  for  compensating  the  losses  of  her  people. 

Thus  Oliver  Cromwell  made  a demand  on  Cardinal  Mazarin,  during  the 
minority  of  Louis  XIV»  for  indemnity  to  a Quaker,  whose  vessels 
had  been  seized  and  confiscated,  without  reason,  off  the  coast  of 

83 

Halleck,  International  Law  and  Law  of  War,  141 

34  ” 

Taylor,  International  Public  Law.  441 

35  ^ 

Lawrence,  Princinles  of  International  Law,  335 


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France.  Having  got  no  reply  from  France  within  the  period  of  three 

days  being  specified  in  the  demand,  Cromwell  sent  out  two  ships-of- 

war  to  make  prize  of  French  vessels  in  the  English  channel.  The 

vessels  were  captured  and  sold.  The  Quaker  was  compensated  out  of 

the  proceeds  of  the  sale  of  the  prize,  and  the  residue  was  handed 

over  to  the  French  Ambassador  in  London. 

In  the  case  of  special  reprisals,  immediate  confiscation  is 

more  frequently  resorted  to,  though  the  permission  is  limited  to 

38 

particular  persons,  places  and  things.  But,  however,  if  the  prince 

on  the  other  side  considered  the  demand  to  be  unsound,  or  the 

compensation  obtained  to  be  excessive,  he  was  justified  to  issue 

37 

letters  of  Contre-Marque . 

As  the  result  of  the  development  of  the  modern  sense  of  stats 

responsibility,  and  of  the  increase  of  power  of  government,  special 

reprisals  have  fallen  into  disuse.  The  wronged  individual  will 

now  be  told  by  his  state  that  she  would  bear  the  responsibility 

in  obtaining  the  redress  for  him,  from  the  country  to  which  the 

offender  owes  his  allegiance. 

On  the  other  hand,  reprisals  are  general  when  one  stats 

grants  to  its  subject  a general  permission  to  seize  the  goods,  or 

persons  of  the  offending  state  on  the  open  sea  or  without  the 

38 

jurisdiction  of  that  state. 

General  reprisals  have  also  been  held  as  acts  of  forcible 
character  taking  place  when  a state  that  feels  itself  aggrieved 

36 

Moore,  International  Law  Digest . Volume  VII,  120 
27 

Westlake,  International  Law.  Part  II.  9 
26 

Hal leek.  International  Law  and  Law  of  War . 140 


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S9 

performs  warlike  operations  without  an  intention  to  make  war. 

They  consist  in  seizing  or  destroying  property,  holding  territory, 
or  capturing  vessels  of  the  offending  state.  It  remains  a reprisal 
in  international  law,  until  a declaration  of  war  by  the  state  that 
suffers  these  things.  The  hostile  act  of  France  against  China,  in 
1884  and  1885,  is  the  conspicuous  example.  The  French  government 
deemed  itself  aggrieved  by  finding  bands  of  Chinese  among  the 
soldiers  of  Tonquin  which  it  was  trying  to  suppress,  but  it  did  not 
wish  to  wage  regular  war  with  China.  A policy,  of  what  had  been 
described  by  the  French  Minister,  Mr,  Jules  Terry  as  one  of  intel- 
ligent destruction,  was  adopted.  A French  fleet  was  ordered  to 
bombard  the  arsenal  of  Too-Chow  and  to  take  possession  of  certain 
places  on  the  Chinese  Island  Tai-Wan  or  Formosa.  But  negotiations 
were  not  interrupted,  diplomatic  ministers  were  not  withdrawn,  and 
an  actual  war  was  not  in  existence  between  the  two  countries.  It 
is  evident  therefore  that  reprisals,  like  any  other  act  of  force 
applied  against  another  state,  do  not  mean  or,  indeed,  need  not 
necessarily  result  in  war.  Sometimes,  however,  the  meaning  may  be 
changed;  as  when  for  example  Great  Britain  applied  "general  repri- 
sals" in  recent  days,  authorizing  the  British  fleet  to  seize  in 

30 

time  of  war  all  enemy  ships  and  goods. 


S9 

Lawrence,  Principle  of  International  Law.  336 
30 

Oppenheim,  Int er nat i onal  Law . Volume  II,  37 


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1/ 


chapter  II 

A Brief  Development  of  the  Historical 
Development  of  Reprisals 

Having  understood  the  meaning,  characteristic  and  classifi- 
cation of  reprisals,  we  proceed  now  to  make  a brief  account  of  its 
historical  development. 

In  ancient  Greece,  before  the  declaration  of  war  and  after 

the  denial  of  ;justice,  the  Greek  states  would  grant  licenses  to 

their  citizens  to  plunder  the  offending  state  on  land  and  sea. 
called  . 1 

Another  custom, ^calle^d  Androlepsia.  Androlepsia,  which  means 

"seizure  of  men”,  was  a special  form  of  reprisal,  or  retaliation 

8 

applied  in  a drastic  manner.  If  an  Athenian  was  unjustly  put  to 
death  in  a foreign  country,  and  if  the  government  by  whose  subject, 
or  in  whose  territory  the  crime  was  committed,  set  the  murderer 
free  and  also  refused  to  extradize  him  to  Athens,  then  the  relatives 
of  the  victim  were  authorized  by  the  Athenian  law  to  seize  three 
citizens  of  the  offending  state  and  to  hold  them  as  hostages.  They 
could  not  enjoy  freedom  until  restitution  was  made,  or  the  murderer 
surrendered.  Even  after  they  were  relieved,  their  possessions 
would  not  be  exempted  from  confiscation.  It  appears  that  only  thos^ 
of  not  more  distant  degree  of  relationship  than  that  of  the  second 


Woolsey,  International  Law . 133 


Phillipson,  The  International  Law  and  Custom  of  Ancient  Greece 
^nd  Rom^,  349;  and  Oppenheim,  International  Law,  Volume  fl , 
37 


yU  -'-V  : >>  V' 


S - 


'i’i  #A^-4l-r.r6V#C  'it.  IT'-'  k 

• • I J'  ■ -til  ■-  . ,’_4fV — 1 


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{ 

. 


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■-  *'v^-  .■  ■ ■ ' I,  ' <'  H 

“tM  «lN»ifcffl  iWlfH  . irUo^&iuz:4iA  p>;XMi^yt!iCfT0i{if 

-V--'  • ^ '■ 

: tK^-iit-t^J  1,  ,.iiv  Stc.j'  MC  ! /S  a^5  ,'’^,,‘!<i^af‘fi(.6ii‘‘  . 

. i.vV  X-  ■•-*  ■,  ^ U .,  ’ . f f : 

c,'  1 at  i l ,-iit£aAV' 

k ^ V - '*i  . ' -■':  . • 

V'C^i'i;-:  t<r  «*V 

( ‘ *w  . - ' V ..  ■ '^y 

’SZV;«;W|' * . '•\r.~.  • ■“**‘7<  ^ • * , \ ^ ■'  \'P 


V o<ii;^Xi?ti*.  X^:>fju  t5w4>ac/4Vita^ 
. --^  •■•  ' .:i.,  ,, 

■■  ' . iiu  ..  *'-eve:|oi  hxtif  fiyu' 


-Mi  '■  • 

I -slkAl  t «■._....*  I.  A,. . ..-4-— f TVij-.afr'.*'  '1 


M •'.'’>  iSi 
*«  «<-  « 


. Q . , ..v.vVj-  i7, 

V . • L£ . , 4 -,  i.A  I'/',  .M  ,X 


cousin  of  the  deceased  were  entitled  to  act  in  such  manner. 

A question  arises  as  to  how  and  where  would  the  three  fellow- 
countrymen  of  the  homicide  be  punished.  It  goes  without  saying 
that  the  Athenian  law  would  not  permit  the  captors  to  adopt  sum- 
mary measures  or  grant  them  full  liberty  to  treat  the  prisoners 
as  cruel  as  they  liked.  In  all  probablity,  they  were  brought  be- 
fore the  Athenian  tribunals  for  a just  trial.  Though  the  exact 
nature  of  the  proceeding  and  the  penalties  imposed  on  the  captured 
victims  are  unknown  to  us,  yet  there  remains  but  little  doubt  in 
our  minds  that  if  the  court  found  the  seizure  was  unjustifiable, 
damages  were  awarded  to  the  innocent  individual  brought  before  it. 

Androlepsia  apart  from  being  a means  of  international  self- 

3 

help  in  view  of  a denial  of  justice,  has  a religious  basis.  Every 
aiurderer  must  be  duly  expiated;  otherwise  the  deceased  would  ever 
pursue  with  his  imprecation  the  impious  relatives  who  had  forgotten 
the  duty  of  revenge.  But  with  the  modification  of  the  old  strict 
religious  tradition,  and  the  development  of  the  school  of  scepti- 
cism, the  practice  of  Androlepsia  gradually  disappears. 

In  the  place  of  Androlepsia,  reprisals  of  political  character 
developed.  Numerous  examples  were  afforded  in  Homer  and  in  historici 
Greece.  Thus,  the  Epeans  had  by  their  long  and  violent  hostilities 
inflicted  great  losses  on  the  Pylians.  Nestor,  a Pylian,  made  an 
expedition  against  the  aggressors  when  his  demands  for  restitution 
had  been  rejected.  Again,  in  416  B.C.  an  Athenian  garrison  in 
Pylos  having  plundered  the  land  of  Lacedaemonia,  the  government  of 
the  latter  instead  of  renouncing  the  existing  neace  and  declaring 

war  against  Athens,  issued  a proclamation  authorizing  its  subjects 

- 

Phillipson,  International  Law  Custom  of  Ancient  Greece  ^ Rome.35< 

- ---  - - --  - --  L-'  ^ I ■ IWW— MlliW  ■ ^ I I ■Ill'  I .1^^*  I I . 


SrW  ^ '■  ai."^ll«  " .INC^hW  - *••*-  *r  j 


13 

to  make  reprisals  on  the  Athenians. 

In  the  period  of  Macedonian  supremacy,  reprisals  were  still 

frequently  used.  But  some  restrictions  had  been  laid  down.  The 

aggrieved  individuals  should  first  forward  their  claims  to  their 

respective  governments  and  secure  from  them  an  express  licence  to 

adopt  the  forcible  measures,  which  served  very  often  as  a prelim- 

4 

inary  to  commencing  open  war.  Since  then  the  practice  of  reprisals 
began  to'oe  established  in  Greece  as  a regularized  juridical  act,  or 
legitimate  international  procedure,  for  the  purpose  of  putting 
pressure  upon  some  state  to  perform  certain  obligations,  or  of 
exacting  compensation  when  justice  was  denied. 

Reprisals  were  also  restricted  or  regulated  by  express  treat- 
ies or  by  commercial  conventions.  The  treaty  made  between  the  two 
Loerian  towns  Oeantheia  and  Chalaeura  was  the  most  important  one. 

The  contracting  pa,rties  mutually  agreed  to  restrain  from  the  pract- 
ice of  reprisals  within  the  territories  or  their  ports,  but  not 

in  the  open  sea.  If  the  seizure  was  not  justifiable,  the  caotor 

5 

had  not  only  to  pay  the  fine  of  four  drachmas,  but  also  to  restore 

the  goods  seized  within  ten  days.  If  such  restoration  was  not 

made  an  additional  penalty  by  way  of  compensation  would  be  imposed. 

o 

Italy  had  nearly  the  same  practice  of  reprisals  as  Greece. 

In  the  first  place,  the  vindiciae  (laying  claim  to  a thing  and 
taking  possession  of  it)  of  the  Twelve  Tables  was  of  slight  differ- 
ence to  the  reprisals  of  the  Hellenic  law  of  nations.  Secondly, 

both  of  Greece  and  Italy  imposed  penalty  on  the  captor  for  illegal 

- 

Phil lips on.  International  Law  and  Customs  of  Ancient  Greece  and 
Rome . 353 

5 . 

^Drachmas  is  a Greek  coin,  one  drachm&.s  is  equal  to  9 1/2  sterling. 
3 

Phil lips on,  International  Law  and  Customs  of  Ancient  Greece  and 
Rome . 364 


AM 


<►  I ji 

1,1 


. , «,if'/f^ 


t?jr  j 


f*  ^ >0  4^0'^ ^i.-^**''''-’- 

,V  ' ' 'f  ' *i  \ ''  ' ' ■'  Q> 

_ ^ ■’  '.iivoi!  ;'tii 

fj  i 'ijt^^''  '-v*  ../••/.  X-  (s»iijp  x.;wvu'^  i^t-Tig«Ks« 

k:  M *•  . . • . pr^..A.  ..1^* •••..-.  -'.^  .-  A^.  . .A&f, .. ..  k 


'I, 

.: ■■ -’If  ' r‘  * ’■  y'.  ■'  f 

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*■«  ' ':)  •/ ■ V - V ' 


•'i  ’ 


. .-^  : u^i'  (T.ir  rtd»  3Si-ji!«<^i|  .*r 

?'<  •^.  **  • • ' '■'  *■«•;.(  ' /*^,'  *'*  V*^  ' A ' 


r "'i 


w if  w*. «.  ft  3* .;  i I . t » u 1 -IBB 

Tr*  - ^ ■ '»'■  . VM  '?*’  T'  : fe''  ;':3i^ 

•.  ' ' ’•<' . <■;  • ^-  _*  V 


?y^.  I) 


Xi^ M ■ 4;  3 ' 1 ii^  s' «*!>^’' • iX''  * 

•'  ••  : . ^ H •'  ,j'(  ; ■ .!  ^ 

^ h^  . . %C  'j.  v^pBK'A 


T ^.  ■ 


rcUftjo;  \-:i  A'***  -*  * viV'rfiy Iti?  iiX£ii}rX|>3L 

♦ ■;*t  ,*.  I ' ■ a "Vifl 


' ■'  *■  k i > Atl  ■ ' ' ta  ''f 

■ jt-‘ *\1  ■'  jfets^jj.'a.  ■'if*'44*wp^ 

■ "VS,  ;'A  ^ ^ 


Ji> 


ii' 


If 

7 

seizure.  There  was,  however,  in  Rome  a permanent  court  of  inquiry, 

namely,  that  of  the  recuperators  established,  to  inv^est igate,  among 

other  matters,  alleged  grievances  resulting  from  the  seizure  of 

property.  Finally  Rome,  like  the  Greek  states,  made  treaties  with 

other  states  for  the  purpose  of  restricting  or  regulating  the 

6 

practice  of  reprisals.  One  of  the  most  noteworthy  treaties  was 

that  entered  into  between  Rome  and  Carthage  (.306  B.C.).  They 

agreed  that  forcible  measures  of  this  kind  were  not  to  be  adopted, 

and  that  any  act  of  violence,  committed  in  the  territory  of  the 

one  against  the  subjects  of  the  other  state,  should  be  considered 

a public  offence  and  dealt  with  accordingly. 

In  the  later  period  of  the  Roman  Empire  the  practice  was 
9 

seriously  prohibited.  Thus  Honorius  and  Theodosius  disapproved  by 
writing  in  42S  A.D,  the  seizure  of  an  individual's  goods  for  privat 
or  public  debts  of  another  individual  or  state.  Some  fifty  years 
later  Zeno  wrote  to  the  same  effect,  and  said  that  the  act  under 
such  circumstances  was  not  only  contrary  to  the  law  but  autigon- 
istic  to  all  natural  equity.  Finally,  in  537  A.D.  there  was  a 
novel  of  Justinian  that  referred  to  the  abuse  of  seizure  and  laid 
down  the  maxim  that  the  offenders  ought  to  be  subject  to  corporal 
punishment . 

Furthermore,  it  was  an  ancient  custom  in  England  that  wlien 
an  English  merchant  had  been  robbed  or  when  his  property  had  been 
despoiled,  the  King  of  England  would  e-stablish  a ooimmission 
oo  investigate  the  robbery  and  to  punish  the  offenders.  The  work 

Phillipson,  Int ernati onal  Law  and  Custom  of  Ancient  Greece  and 
Rome . 364 

9,  9 

International  t.aw  and  Custom  of  i^ncient  Greece  and 
Rome.  3o¥T  ■365"'^"~  ^ 


*1  ' , ^(T-,  / .>.t»  » ' . /^.  •;  '*Y  ; • ■ •’  ' i ‘ 

II  . * I.  ; ■ • • A.  . ■ 7 ‘ - .fc  -r* 


.'  ■'  ' • fN  ■ . ■'•  I'  V I ■ *■  .:  ’■: -i*-  ;•■- — ^ 


f ■ ,’  4’|  I V ^ ■-.*:  '( t:c 

ll  ■ . -^  ■ S,“-  ; . ‘ '^.  ?•  -’T  • i'>-  ’.u*?  v-“  \ 

' ^ ^ .n.’ 


,I‘*X 


*!*<'  i'  ..  ^ -■  i . *■  ] ' 4 ’ a' •'  • *.  y r* 


l»*  ' ' ••  ■ •■:\.L'>i(ifi^v'4i4!lli  ' ’ .-.  ..-J.5«|- 


f.  ' - . V«  ■ ■■  ■"  • ' * ■ “■'■  .“■  . ^ ’4?’  ■ ■ • •■■’ ' 


..  • ‘ - It-J5  • » . • ■ . r n?’  . , ’r^V  •■  ‘V-  •'•*™*'.'‘-' 




L "Y  r ' ■ i/H,  / ■•'  J * . ^ ^ ,v':  _C  I.:^ 


,!ry'/-  • .:  g;  v-v  v..-»:  ...•  ■ T/- * i r*^*?*^^ -#••  ,flh •>.-. • ^^:--  ••  i-4j  J 

I ~<^lBili'f  li  I I I I 'iiin  n i(iiii  f ' 'iJiiii  iMiiii  iiii  ill  I 1 1 i>i  iiri^tiiiiMiii^aiiii.MiiiiiT  . fi  I n I 


rVV' 


«/  . . '^,.  v«  ,. 


of  this  commission  was  concurrent  with  the  three  laws,  i.e.,  the 


10 

law  of  Custom  of  England,  the  Merchant  Law  and  the  Maritime  Law. 

During  the  middle  ages  and  even  in  modern  times  to  the  end  of 

the  eighteenth  century,  states  were  accustomed  to  grant  "Letter  of 

Marque"  to  their  subjects  who  had  been  injured  abroad  either  by  a 

11 

foreign  state  or  its  citizens  and  who  could  not  get  redress. 

In  the  modern  period,  with  the  centralization  of  power, 

private  reprisals  have  been  totally  prohibited  and  in  their  places 

magistrates,  governors  of  provinces,  and  courts  were  authorized  to 

take  charge  of  these  affairs  until  at  length  the  right  was  particu- 

13 

larly  reserved  for  the  central  government  alone.  Thus  in  1317  John 
Browne,  an  officer  of  the  admiralty  of  Scotland  boarded  a Dutch 
fishing  vessel  off the  Scotch  coast  in  order  to  demand  the  ancient 
duty  known  as  the  "size  Herring."  Payment  was  denied,  John  Browne 
was  arrested  as  a prisoner  and  carried  to  Holland  by  the  commanders 
of  two  D-utch  convoying  ships.  Engl^and  issued  reprisals  immediately 
upon  Dutchmen  in  London  and  demanded  the  release  of  the  prisoner 
and  the  punishment  of  the  captors.  The  States  of  Holland  found 
it  both  necessary  to  disavow  the  action  of  the  two  commanders  as 
being  "neither  authorized  beforehand,  nor  approved  post  factum," 
and  to  yield  to  the  demand  of  England.  The  offenders  were  extrad- 
ized  and  English  honor  was  entirely  satisfied. 

In  France,  the  right  to  authorize  reprisals  was  once  vested 
in  the  Parliament.  In  1484  the  King  took  over  the  right  and  in 

10 

Singer,  International  Law,  163 
11 

Oppenheim,  International  Law.  Volume  II.  37 
12  ~ 

Woolsey,  International  Law , 184 


If  tft 

'5' 

rr^Mr  • 


• Ti  SS^^-^dfU-  . :'iriV  (r^'i 

ik,  <*  -,J|j^  ' ' > * 'f  y -mV  ' > tj’s'tl*'*' . . ' ,*■  -.^ 

' v ,:  " Sw  -.  ^ ji . • r ; .‘^- • Vv  y»->  yj 

■ i -•  '*  ; ' '•'  "*■  ‘‘■^  ■'*.•■  \ *•  '■'  '7^'  ~^f3& ‘ '-sl'v'a 


'■‘«fc ;t^  •_  fcf*. v^-. . . u.  ■ i -V . e ; <?•-  <# ;.-<•  7 ftiU  •-ve-  tt  t i 
*41;=,  :..  0 -fw.  vv  ni 


r 


•j4vj  5 ■ J 

>f'  • ' »,  'JJT  ' , -^/V' <fj-5i»^f''  *1 


:Vi  ’"■« 

, %Vs»5Wti^ 

..'  - ..-  ■* ’[' 

t .1  . ly 


•■Y’ 


16 


13 


1596  the  earliest  letters  were  issued.  In  1S61,  the  ordinance  of 
Louis  XIV  on  the  marine  was  established  in  which  the  methods  of 
reprisals  were  prescribed.  The  injured  persons,  after  showing  the 
extent  of  the  damages  received  from  a foreigner  and  after  the  King'^ 
ambassadors  had  taken  proper  steps  at  the  foreign  court,  should 
receive  letters  of  reprisals  that  permitted  them  to  make  prize  at 
sea  of  the  property  belonging  to  the  citizens  of  the  state  from 
which  their  requests  for  justice  had  been  denied.  The  prize,  how- 
ever, should  be  brought  before  the  court  of  admiralty  and  in  case 
everything  was  lawful,  the  claimants  were  only  allowed  to  retain 

the  captured  property  in  proportion  to  the  extent  of  injuries 
14 

received. 

As  times  went  on,  the  acts  of  reprisals  were  performed  by 

the  state  themselves  and  at  the  end  of  the  eighteenth  century  the 

practice  of  private  reprisals  fell  gradually  into  disuse  until 

15 

finally  it  totally  disappeared. 


13 

Taylor,  International  Public  Law,  164 

14 

Woolsey,  International  Law , 164 

15 

Oppenheiffl,  International  Law.  Volume  II,  37 


*.  s 


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iiin  I ii'iyi  nipi  ^ I II  HI  \ ' 

- “'•'■’•71  ' . V-  '^*  . . ■’  . i *'  \\J' 


17 

CHAPTER  III 

The  Values  of  Reprisals 

From  the  previous  chapters  we  discussed  what  reprisals  are 
and  how  they  developed.  In  this  chapter  our  attention  will  be 
confined  to  the  value  of  reprisals. 

Differences  between  nations  may  be  terminated  by  forcible 
means,  short  of  actual  war.  Among  the  various  modes  used  for  this 
purpose,  the  following  ones  are  the  most  important. 

(1)  "By  laying  an  embargo  or  requestration  on  the  ships  and 

goods,  or  other  property  of  the  offending:  nations,  found  within 

1 

the  territory  of  the  injured  state." 

(2)  "By  taking  forcible  possession  of  the  thing  in  contro- 
versy, by  securing  to  yourself  by  force,  and  by  refusing  to  the 

2 

other  nation  the  enjoyment  of  the  right  drawn  in  question." 

(3)  "By  exercising  the  right  of  vindictive  retaliation  or  of 

amicable  retaliation;  by  which  last,  the  one  nation  applies,  in 

its  transactions  with  the  other,  the  same  rule  of  conduct  by 

3 

which  that  other  is  governed  under  similar  circumstances." 

(4)  By  declaring  a pacific  blockade. 

5 

(5)  By  intervention. 

(6)  By  instituting  reprisals  upon  the  persons  and  property 
belonging  to  the  offending  states  until  the  alleged  injury  has 

1,2  ----- 

Coleman  Phillipson,  Wheaton  * s International  Law , 404 
3 

Coleman  Phillipson,  Wheaton's  International  Law.  404 
4,5  ■ 

Oppenheim,  International  Law,  Volume  II,  34,  45 


’ I . ' 


¥ 


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18 

8 

been  satisfactorily  repaired. 

As  all  of  the  inodes  except  the  last  of  terminating  differ- 
ences between  nations  by  forcible  means  short  of  actual  war  do  not 
fall  within  the  bounds  of  our  discussion,  we  will  pass  them  over 
and  concentrate  our  attention  on  the  subject  dealt  with. 

So  far  we  have  seen  reprisals  are  forcible  means  short  of 
actual  war  for  putting  stress  upon  nations  during  controversy.  The 
next  question  we  should  bring  out  is,  when  and  for  what  purposes 
they  are  adopted,  and  after  adoption,  what  effects  they  will 
produce . 

In  the  first  place,  they  are  supposed  to  be  used  when  an 

injury  has  been  done  concerning  which  a state  cannot  be  expected 

to  remain  in  silence,  and  amicable  means  for  settlement  such  as 

negotiation,  good  office,  mediation  and  arbitration  have  proved 

of  no  effect,  and  at  the  same  time  the  acts  are  scarcely  of  sufiic- 

7 

ient  magnitude  to  be  a cause  for  immediate  war. 

Under  these  conditions  a means  of  putting  stress  by  something  ■ 
short  of  war  upon  the  offending  state  is  inevitable.  Reprisals 
are  good  for  this  purpose  for  they  are  not  only  milder  than  war, 
since  they  are  war  in  form  but  not  war  in  nature  in  strict  sense. 
They  are  also  capable  of  being  restricted  to  only  such  acts  as  are 
best  suitable  for  enforcing  redress  under  the  circumst8.nce  of  the 
particular  case. 

Furthermore,  states  resort  to  reprisals  for  such  int ernationa; 
delinquencies  as  they  think  of  insufficient  importance  for  an 
actual  engagement  of  war,  but  too  important  to  be  completely 

6 

Oppenheirn,  International  Law,  Volume  II,  34,  45 
7 - 

Hall,  International  Law.  (sth  Edition).  361 

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6 

neglected. 

That  reprisals  are  rather  rude  means  for  terminating  differ- 
ences between  nations  and  that  the  institution  of  reprisals  give, 
and,  indeed,  has  in  the  early  days  given,  occasion  to  abuse  in  ca.se 
of  controversy  between  a strong  and  weak  nation  cannot  be  denied. 
But  as  there  is  no  court  or  central  authority  above  the  sovereign 
state  to  give  reparation  for  an  injury  inflicted  upon  another  state 
the  institution  can  never  be  abolished.  We  must  agree  with  the 
opinion  of  Mr.  Oppenheim  expressed  in  his  statement  in  his  ’’Inter- 
national Law,”  that  ”If  all  the  states  would  become  parties  to  the 
Hague  Convention  for  the  peaceful  adjustment  of  international 
differences,  and  if  they  would  have  recourse  to  the  Permanent 
Court  of  Arbi  traction  at  the  Hague  in  all  cases  of  an  alleged  inter- 
national delinquency  which  affect  neither  their  national  honour  nor 
their  independence,  acts  of  reprisals  would  almost  disappear,"  To 
this,  we  may  add  that  if  the  small  states  would  have  abandoned  the 
idea  of  absolute  equality  of  states  proposed  by  the  delegate  of 
Brazil  in  the  Second  Hague  Conference  and  offered  hea.rty  support 
to  the  plan  of  the  United  States  for  the  establishment  of  the  Court 
of  Arbitral  Justic,  many  recent  calamities  resulting  from  the 
application  of  reprisals  would  not  have  occured. 

But  sorry  we  are  to  say  that  as  long  as  the  pride  of  states 
does  not  fade  away  and  as  long  as  nations  insist  in  acting  in  their 
own  ways,  the  abolishment  of  reprisals  would  cause  more  harm  than 
good. 

In  conformity  with  Article  14  of  the  covenant  of  the  League 

6 

Oppenheim,  International  Law , Volume  II,  43 


'/K  'T  ’ 


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20 


of  Nations,  a permanent  Court  of  the  International  Justice  was 
formally  opened  on  the  thirtieth  of  January  1922.  It  was  estab- 
lished for  the  purpose  of  hearing  and  deciding  international  dis- 
putes submitted  to  it  by  the  parties  in  controversy.  Although  it 
has  been  declared  that  the  court  is  but  an  addition  to  the  co\irt 
of  the  Arbitration  organized  by  the  conventions  of  the  Hague  in 
1699  and  1907,  and  the  special  tribunals  of  Arbitration,  yet  it 
reaches  the  highest  watermark  of  the  development  of  international 
judicial  organization.  If  all  countries  in  the  world  would  submit 
to  this  permanent  court  all  kinds  of  international  disputes,  no 
matter  whether  they  are  legal  or  political,  whether  or  not  they 
involve  national  honour,  independence  or  vital  interest,  the  result 
would  be  the  discontinuance  of  the  use  of  reprisals.  Otherwise, 
the  practice  of  reprisals  ought  to  be  continued. 

Of  course  self-respect  may  forbid  a state  to  yield  under 
violent  and  coercive  pressure,  although  willing  to  accept  a sugges- 
tion to  settle  the  question  at  issue  by  some  reasonable  concession. 
But,  under  certain  situations,  when  strong  powers  find  the  neces- 
sity to  undertake  practical  police  measures  a.gainst  a weak  and 
obstinate  power,  reprisals  may  be  a useful  alternative  to  war. 

They  are  less  destructive  and  more  limited  in  their  operation.  It 
is  not  untrue  that  they  may  be  used  to  impose  injury  upon  small 

states  by  bringing  out  unreasonable  demands.  But  war  is  so  terri- 

9 

ble  that  is  would  certainly  cause  more  suffering.  From  this 
point  of  view,  it  is  again  apparent  that  to  banish  from  interna- 
tional law  its  sanction  of  reprisa,ls  seems  unreasonable.  What  we 

9 

Lawrence,  Principles  of  International  Law . 343,  344 


; T 


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should  do  is  to  create  a strong  public  opinion  against  the  operat- 
ion on  slight  provocation  or  for  a manifestly  unjust  cases,  and  to 
get  rid  of  a new  danger  which  arose  in  consequence  of  the  decision 
of  the  Second  Hague  Conference  that  the  commencement  of  hostilities 
must  be  preceeded  by  a formal  declaration  of  war.  By  this  rule 
the  strong  nation  may  be  tempted  to  evade  new  obligations  by  at- 
' tacking  the  weak  nations  suddenly  under  the  guise  of  reprisals.  In 
order  to  meet  this  danger  Professor  Westlake  proposes  a rule  that 
no  form  of  reprisals  "shall  be  used  against  any  state  unless  it  re- 
fuses or  neglects  to  reply  to  an  offer  of  arbitration,  or  after 
accepting  the  offer,  prevents  any  agreement  of  reference  from 

I being  concluded,  or,  after  an  arbitration  refuses  to  submit  to  an 
10 

i award . ” 

A 

! Again,  reprisals  are  preferable  to  wax  for  two  other  reasons, 

! ! In  the  first  place  the  goods  seized  by  a belligerent  in  time  of 

, ' War  are  goods  for  prize,  while,  on  the  ether  hand,  goods  seized 
' ‘ . 11 
’ by  reprisals  are  restored  if  peace  should  be  oontinued.  In  the 

‘ second  place  after  the  reparation  of  injury,  a revocation  of  the 

Letters  of  Marque  or  reprisals  may  restore  peace  without  the  delay, 

13 

difficulties  and  ceremonies  of  a treaty. 

Reprisals  may  produce  a psychological  effect  upon  states. 

It  is  due  to  the  fear  of  reprisals  that  the  arbitrary  action  of 
the  medieval  sovereign  was  checked.  Otherwise  the  property  of 
, the  parsing  foreigners  would  have  aroused  a great  temptation.  It 
is  by  the  same  fear  that  those  who  have  at  the  present  time 

: 10 

^Lawrence,  Principles  of  International  Law . 344 
Hal leek.  International  Law  and  Law  of  War,  143 

s 12  --  - — ^ - “ 

Moore,  International'  Law  Digest , Volume  VII,  133  


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strong'  inclination  to  commit  a wrong  against  others  are  in  like 
manner  often  prevented.  The  question  why  evil-doers  are  checked 
hy  retaliation  seems  very  interesting.  The  answer  is  simple.  It 
is  nothing  but  human  nature.  As  a person,  who  is  inclined  to  do  j 

wrong  against  another  person,  is  always  afraid  of  being-  revenged, 
why  should  not  a state  imposing  injury  upon  another  state  be  afraid 
of  being  retaliated  by  reprisals? 

Through  the  high  tide  of  Chauvinism,  Protectionism,  and 
unfriendly  feelings  against  foreign  nations,  states  often  issue 
legislative,  administrative  and  judicial  acts  against  other  states 
which  though  are  not  internationally  illegal  may  be  enforced  in 
such  a Way  as  to  endanger  the  friendly  relations  and  intercourses 
in  the  community  of  nations.  The  certainty  of  reprisals  is  the 
only  effective  way  to  subdue  the  temptation. 


/.ifl  -4^»  -* 


\ 


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23 

CHAPTER  IV 

The  Justification  of  Reprisals  in  Time  of  Peace 

In  the  previous  chapters  we  have  discussed  the  meaning,  class- 
ification and  values  of  reprisals.  In  the  remaining  chapters,  I 
shall  endeavor  to  examine  the  two  important  aspects  of  reprisals 
in  international  law:  namelj'’,  the  justif icc^tion  of  reprisals  in 
time  of  peace,  and  the  justification  of  rex)ri3al3  in  war. 

We  shall  begin  first  with  the  question  of  the  justification 
of  reprisals  in  time  of  peace.  As  one  of  the  means  of  settling 
international  differences,  the  enforcement  of  reprisals  may  not 
always  be  justifiable.  When,  or  on  what  occassions  then,  are 
reprisals  justifiable  in  time  of  peace,  and  when  or  on  what  occas- 
ions they  are  not?  These  questions  should  invite  our  serious  atten- 
tions. It  will  be  convenient  to  discuss  such  questions  section  by 
section. 

(l)  Reprisals  Admissible  for  International  Delinquencies. - 
"International  delinquency,”  says  Professor  Oppenheim,  "is  every 
injury  to  another  state  committed  by  the  head  and  government  of  a 
state  through  violation  of  an  international  legal  duty."  It  may 
consist  in  an  ill-treatment  of  the  injured  state's  subjects  abroad 
by  a denial  or  delay  of  justice  or  in  non-compliance  with  treaty 
obligations,  or  in  violation  of  the  dignity  of  a foreign  state, 
violation  of  foreign  territorial  sovereignty  or  any  other  interna- 
tional illegal  acts.  If  the  injured  state  in  such  cases  cannot 
secure  reparation  from  the  delinquent  state  through  negotiation, 


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1 

the  former  is  permitted  to  issue  reprisals  against  the  latter. 

Thus,  for  example,  in  the  case  of  the  Sicilian  Sulphur  Monopoly, 
Great  Britain  exercised  acts  of  reprisals  against  the  two  Sicilies 
in  1640  for  a violation  of  a treaty.  In  1613  a treaty  of  commerce 
Was  concluded  between  the  two  Sicilies  and  Great  Britain  by  which 
the  latter  had  secured  certain  commercial  advantages.  In  1636, 
when  a sulphur  monopoly  was  granted  by  the  Neapolitan  government  to 
a company  of  French  and  other  foreign  merchants,  Great  Britain,  in 
order  to  protest  against  this  violation  of  her  treaty  right,  demand' 
ed  the  revocation  of  her  monopoly.  When  the  Neapolitan  government 
failed  to  comply  with  this  demand.  Great  Britain  laid  an  embargo 
on  Sicilian  ships  in  the  Harbor  of  Malta  and  sent  out  a fleet  to 
seize  Sicilian  vessels  as  means  of  reprisals,  A number  of  vessels 
were  captured  accordingly.  They  were  restored,  however,  after  the 
Sicilians  had  through  the  mediation  of  France,  agreed  to  revocate 
their  grant  of  the  sulphur  monopoly. 

(s)  Reprisals  ought  to  be  Preceeded  by  Negotiations  and  to 
be  Stopped  when  Reparation  is  Made.  - Like  all  the  other  compulsive 
means  of  settling  international  disputes,  reprisals  are  admissible 
only  after  the  failure  of  negotiation  which  is  conducted  for  the 
offending  state.  In  the  early  days,  when  the  practice  of  special 
reprisals  was  in  prevalence,  a certain  period  of  times  to  elapse 
was  provided  in  the  treaties  of  commerce  and  peace  after  an  appli- 
cation for  redress  before  the  grant  of  Letters  of  Margue  by  the 
3 

injured  state.  Thus  by  the  34th  article  of  the  treaty  of  1654 
1 ” 

Oppenheim,  International  Law,  Volume  II,  35 
Oppenheim,  International  L^w,  Volume  II,  41 


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concluded  between  England  and  Holland  a period  of  three  months  was 

stipulated  to  elapse  after  the  application  for  reparation  before 

the  reprisals  were  granted.  Again  by  the  treaty  of  1669  between 

France  and  Holland  the  length  of  time  for  such  purpose  was  four 
3 

months.  Even  though  special  reprisals  have  fallen  into  disuse  at 
the  present  time,  a reasonable  time  must  be  allowed  for  the  perform 
ance  of  reparation. 

On  the  other  hand  as  soon  as  reparation  is  given,  reprisals 
must  be  stopped.  Individuals  arrested  must  be  released,  ships  or 
other  property  seized  and  retained  must  be  returned,  territory 
occupied  must  be  evacuated,  treaties  suspended  must  be  again  en- 
forced, and  the  like. 

(3)  Self-help.  - Reprisals  are  admissible  in  case  of  self- 
help.  Thus,  for  instance,  when  Holland  in  1760  repudiated  the 
treaty  obligation  under  which  she  had  promised  to  relieve  England 
when  attacked,  the  British  government  used  reprisals  by  suspending 
all  particular  stipulations  concerning  freedom  of  navigation  and 
commerce  etc.,  contained  in  the  several  treaties  concluded  between 
England  and  Holland. 

The  acts  of  the  British  government,  although  being  of  a war- 
like nature,  were  justifiable;  for  the  condition  was  such  that  in 
the  pursuance  of  the  right  of  self-preservation  euid  under  the 
pressure  of  absolute  necessity  she  could  not  use  any  other  effec- 
tive means  to  win  back  the  mind  of  the  Dutch  government. 

Nevertheless,  the  conduct  of  the  British  government  in  this 
occasion  is  still  subject  to  serious  criticism.  In  the  first  place 

3 

Phillimore,  International  Law.  Volume  II,  § 14 


-Mir  i,v>v,;i';^  - rvifia 


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the  measure  of  rex^risals  was  resorted  to  without  waiting  till  the 
exhaustion  of  all  diplomatic  means  of  securing  redress;  and,  in 
the  second  place,  the  reprisals  did  not  bear  a proportion  to  the 
magnitude  of  the  injury  received. 

(4)  Reprisals  for  the  Protection  of  Citizens  Abroad.  - In 

consequence  of  the  right  of  protection  over  its  subjects  abroad 

which  every  state  enjoys  and  of  the  corresponding  duty  of  every 

state  to  treat  well  the  aliens  in  its  territory,  an  alien  who 

retains  his  allegiance  to  his  mother  country  cannot  be  outlawed  by 

the  state  where  he  stays  but  must  be  afforded  protection  for  his 

4 

person  and  property. 

The  alien’s  home  state  has  a right  to  claim  protection  for 
him  from  the  state  that  allows  him  to  enter  its  territory,  and  it 
would  be  no  excuse  that  such  state  does  not  provide  any  protection 
whatsoever  for  its  own  citizen.  Consequently,  every  state  is 
compelled,  by  international  law,  to  grant  to  the  aliens  at  least 
an  equality  before  its  courts  with  its  own  citizens  as  far  as 
safety  of  person  and  property  is  concerned.  The  officials  and 
courts  of  the  state  must  not  injure  an  alien  in  person  or  property. 
Thus  the  police  cannot  aurrest  him  without  cause  and  the  court  can- 
not unjustly  punish  him. 

Moreover,  if  by  long  usage  and  custom,  the  aliens  are  allowed 
to  enjoy  certain  rights;  and  these,  though  originally  a free  con- 
cession are,  suddenly,  unjustly,  violently  and  without  any  equit- 
able notice  deprived  from  them,  it  is  considered  an  injury  done 
to  them  for  which  his  home  state  should  demand  reparation.  The 

4 

Oppenheim,  International  Law . Volume  I,  § 330 


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denial  of  this  demand  will  justify  it  in  exercising  its  sovereign 
right  of  protection.  This  right  can  he  exercised  in  several  ways; 
In  the  first  place,  it  can  insist,  through  diplomatic  channel, 
upon  the  punishment  of  the  wrong  doers  according  to  the  law  of  the 
land,  and,  if  necessary,  upon  the  payment  of  damages  to  the  injured 
subjects.  Secondly,  it  can  exercise  retorsion  or  reprisals  in 
order  to  force  the  offending  state  to  comply  with  its  demands.  It 
can,  further,  exercise  intervention  or  appeal  to  arms  when  it  is 
necessary. 

International  laws  have  given  sanction  to  this  right  and 
duty  of  protection.  But  a question  still  remains  fresh  in  our 
mind.  That  is,  whether  a state  has  a risrht  to  exclude  aliens. 

That  a state  has  such  right  is  almost  unanimously  agreed  by  the 
writers  of  international  law.  "Every  state  is  free  to  admit  for- 
eigners upon  its  territory  or  to  exclude  them,  in  case  of  necessity 
from  motive  of  public  order;  with  stronger  reason  it  is  free  to 
admit  them  on  certain  conditions,  under  certain  restrictions.  At 
the  same  time  the  usage  generally  followed  by  governments  permits 
to  foreigners,  in  time  of  peace,  entrance  upon  their  territory, 
freedom  to  trade,  passage,  temporary  sojourn,  and  settlements;  but 
it  is  well  understood  that  every  individual  presenting  himself 
upon  foreign  territory,  by  this  fact  alone  tacitly  agrees  to  submit 
to  the  laws  of  the  country  that  receives  him,  to  pay  the  imports 
due  from  any  commercial  operations  in  which  he  may  engage  or  any 

business  which  he  may  establish,  and  to  observe  the  local  police 
5 

regulations."  "The  reception  of  aliens"  says  Professor  Oppenheim, 

5 

Hers hey,  Essentials  of  International  Public  Law,  § 244 


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Vr^'  1 ‘ ' ' . " ’*V’l. ■ V ‘ / i 


i 

€l 


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r [ -..  W-  i>r.;.  i 0 4 tW/x^  fi . 

'•'51/  \ " . '•  ■'  ■''■■  . '’v  • ‘ ""•‘S-li 

■■'  I '.r ' -i-‘  ",;■,  ,.;-;  '«iyi  'r  ■ ■''W''T'  . '" 'T#: 

fc.^  * ■*?  • ■•  ■ >’  ' '•. **"k£a  *’' ' •a'/'V-  — -I,  »>.  i»i ♦ir*A  • ‘^3*’ ' i*i* j*.* 

^'-'V  - ' ' • •*•  fkVx.:»l  ■ • ...  . ■;•'.•  ' ■.•<((>>  W d 


"is  a matter  of  discretion,  and  ever3^  state  is  by  reason  of  its 

territorial  supremacy  competent  to  exclude  aliens  from  the  whole, 

or  any  part,  of  its  territory.  And  it  is  only  by  an  inference  from 

this  competence  that  Great  Britain,  the  United  States  of  America, 

and  other  states  have  made  special  laws  according  to  which  paupers 

and  criminals,  as  well  as  diseased  and  other  objectionable  aliens 

6 

are  prevented  from  entering  their  territories."  Rivier  also  said, 
"The  state  is  master  in  its  own  house.  It  may  refuse  to  foreigners 
access  to  its  territory,  interdict  all  immigration,  or  the  immigra- 
tion of  certain  individuals  or  of  certain  categories  of  individual^ 

7 

for  example,  nationals  of  certain  countries." 

From  theoritical  point  of  view,  the  arguments  mentioned  above 
are  very  sound.  But  in  pra.cxice,  such  wholesale  exclusion  is 
impossible  in  normal  times.  In  the  first  place,  there  is  no  coun- 
try, not  only  in  Europe,  but  in  the  world,  since  the  opening  of 

no 

China  and  Japan,  in  which  there  are,^foreigners  both  transient  and 
resident.  After  being  permitted  to  enter  the  territory  of  which 
they  are  not  natives,  they  ought  to  have,  and,  indeed,  they  do  have 
the  right  to  be  secured  from  injury  while  therein.  The  ill-usage 
of  them  whether  by  positive  maltreatment  or  by  denial  of  justice 

6 

will  be  resented  by  the  state  to  which  they  owe  their  allegiance. 

In  the  second  place,  hundreds  of  treaties  of  commerce  and  friend- 
ship have  been  concluded  between  members  in  the  Family  of  Nations 
by  means  of  which  each  is  obliged  to  receive  and  protect  the  un- 


6 

Oppenheim,  International  Law.  Volume  I.  §314 
7 — 

Hershey,  Essentials  of  International  Law.  257  N.52 

& 

Phillimore’s  International  Law , IV,  2-3 


! , *"'"  , ■ «»■;  ■ >?'  . vjl:~-t»,'*t't<» 


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9 

objectional  subjects  of  the  others.  In  the  third  place,  there  is 
no  doubt  that  in  the  case  of  expulsion  of  an  alien  who  has  been 
dwelling  in  the  territory  of  the  expelling  state  for  some  length 
of  time  and  has  established  certain  honorable  busine.ss  there,  the 
home  state  of  the  expelled  individual  is,  by  virtue  of  the  right  of 
protection  over  its  subject  abroad,  Justified  in  asking  the  reason 
of  the  expulsion  through  diplomatic  channel.  The  failure  of  the 
expelling  state  to  supply  the  reasons  for  such  expulsion  to  the 
home  state  of  the  expelled  individual  will  constitute  a very  un- 
friendly act  though  not  an  illegal  one.  It  cannot  be  denied,  how- 
ever, that  in  spite  of  its  international  legality,  an  unfriendly 

10 

act  can  be  rightly  met  by  reprisal  in  form  of  retorsion.  In  the 
fourth  place,  if  a state  imposes  unreasonable  restrictions  upon 
the  admission  of  the  subjects  of  a particular  state  or  imposes 
unequal  condition  upon  their  certain  work  as  a laborer,  or  estab- 
lish business  or  to  practice  certain  profession,  it  will  Justify 
the  state  whose  subjects  are  thus  injured  to  resort  to  retorsive 
legislation  in  order  that  the  condition  of  its  subjects  who  stay 
abroad  may  be  ameliorated.  Or,  it  may  resort  to  measures  which 
will  make  the  subjects  of  the  offending  state  suffer  a correspond- 
ing or  equivalent  disadvantage  or  inconvience  if  they  happen  to 

11 

reside  or  sojourn  in  its  territory. 

Finally  "there  should  be  no  discrimination  because  of  race  or 
IS 

religion,"  History  furnishes  us  many  examples.  The  cases  of  Rosen- 


9 

Oppenheim,  International  Law,  I,  <§314 

10  “ 

Oppenheim,  International  Law,  I,  <§343 

11 

George  B.  Davis,  Element  of  International  T.aw . 363-S64 
IS 

Hershey,  Essentials  of  International  Public  Law . ^347 


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it.. 


30 


13  14 

Strauss  and  of  Wilczyuski  are  two  of  the  most  conspicaous. 

The  case  of  Rosenst  rauss . - In  1873  Theodore  Hosenst  ra-uss, 
a citizen  of  the  United  States  who  had  since  1863  settled  at  Khar- 
koff  as  a mechanic  and  merchant  of  the  second  guild  was  required 
hy  the  Russic-n  authorities  to  obtain  a license  of  the  first  guild, 
costing  about  600  roubles,  instead  of  a license  of  the  second  guildi 
costing  150  roubles  which  he  had  obtained  during  the  nine  preceed- 
ing  years,  as  well  as  to  sign  a writing  to  ask  for  future  license 
unless  he  got  a permission  to  continue  his  business  from  the  Minis- 
ter of  Interior,  The  sole  reason  for  the  action  of  the  Russian 
authorities  was  because  Rosenstrauss  believed  in  the  Hebrew  relig- 
ion. He  was  told  by  the  license  commissions  that  only  Russian 
Hebrews  could  engage  in  business  at  Kharkoff  and  that  foreigners  of 
that  faith  were  excluded  from  enjoying  the  same  privilege.  Rosen- 
strauss could  do  nothing  under  such  condition  but  invoke  the 
interposition  of  the  American  legation  at  St.  Petersburg.  Mr. 
Jewell,  the  American  Minister  at  St.  Petersburg,  made  a strong 
protest  to  the  Russian  government.  As  a result,  a satisfactory 
solution  was  achieved.  A permission  was  granted  by  the  Russian 
authorities  to  Rosenstrauss  to  remain  in  Kharkoff  and  continue  his 
business  there,  provided  he  obtained  a license  of  the  first  guild. 

The  case  of  Wilczyuski  is  equally  interesting.  In  1660  Mr. 
Marx  Wilczyuski,  an  American  citizen  of  Jewish  birth,  was  forced 
to  leave  St.  Petersburg  with  all  other  native  Jews.  Mr  Foster, 
the  American  Minister  at  St.  Petersburg,  brought  the  case  to  the 
attention  of  the  Russian  government  and  requested  that  Wilczyuski 
might  be  permitted  to  return  to  Russia.  The  result  was  that  Mr. 

IsTu 

Moore,  International  Law  Digest,  IV,  <5554 


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to  deny  or  to  overturn  justice."  Mr,  Moore  also  says,  "the  law  of 
nations  does  not  allow  reprisals,  except  in  cases  of  violent  in- 
juries directed  and  supported  by  the  state,  and  the  denial  of  just- 

17 

ice  by  the  tribunal  and  the  prince." 

In  1794,  the  Jay  Treaty  was  concluded  between  Great  Britain 
and  the  United  States.  It  was  resented  by  France  as  a measure 
nullifying  to  a great  extent  the  special  advantages  enjoyed  by  her 
under  the  treaty  of  1776  and  the  consular  convention  of  1766  by 
which  France  had  claimed  great  privileges  in  American  ports  with 
regard  to  the  setting  out  of  privateers,  the  bringing  in  of  cap- 
tures and  the  exercising  of  prize  jurisdiction.  Accordingly,  in 
December,  1796,  France  adopted  a measure  of  reprisals  by  sending 
a notice  through  her  minister  for  Foreign  Affairs  to  the  American 
Minister  to  Paris,  Mr.  Pinckney,  telling  him  that  the  Directory 
would  no  longer  recognize  nor  receive  a minister  plenipotentiary 
from  the  United  States  until  after  the  reparation  claimed  by 
France  upon  the  American  government  was  made.  The  French  also  said 

that  this  determination  was  not  going  to  affect  the  continuance  of 

16 

the  affection  between  the  French  Republic  and  the  American  people. 

On  the  7th  of  July,  1796,  President  Adams  approved  of  an  act 
by  which  it  was  declared  that,  as  the  treaties  between  France  and 
the  United  States  had  been  repeatedly  violated  by  the  former,  the 
reasonable  demand  for  reparation  refused;  and  as  there  was  still 
being  pursued  against  the  United  States  a system  of  predatory 

16 

Woolsey,  International  Law,  162 

17 

Moore,  International  Law  Disest,  Vol.  VII.  120 

18  ^ ~ 

St  owe 11  and  Munro,  International  Cases . War  and  Neutrality.  3 


2>3 

violence,  in  contradictory  to  the  treaties  and  hostile  to  the 
rights  of  a free  and  independent  nation,  the  United  States  was  of 
right  freed  and  exonerated  from  the  stipulations  of  the  treaties, 
and  of  the  consul-ar  convention  and,  under  this  circumstance,  these 
compacts  should  ”not  henceforth ... .be  regarded  as  legally  obliga- 
tory on  the  government  or  citizens  of  the  United  States."  At  the 
next  session  of  the  congress,  the  commercial  relations  between 
these  two  countries  were  interrupted;  authority  was  given  to  the 
President  to  exchange  French  citizens  who  might  be  captured  by  the 
United  States,  to  summon  the  array  and  to  adopt  acts  in  relation  to 
hostilities . 

(b)  Disproportion.  - The  justification  of  reprisals  being 

that  they  are  used  as  means  of  avoiding  the  graver  alternative  of 

war,  it  must  in  principle  be  conceeded  that  anything  short  of 

actual  war  is  permissible  for  sufficient  cause.  The  pressure  put 

upon  the  offending  states  must  not  be  more  severe  than  the  injury 

received  by  the  offended  state.  If  the  acts  which  may  be  done  by 

Way  of  reprisals  cannot  be  in  limits,  or  if  they  depart  widely 

from  the  rules  of  peace,  the  blame  will  be  thrown  upon  the  state 

making  use  of  them.  It  is  generally  agreed  that  to  make  reprisals 

either  disproportioned  to  the  provocation,  or  in  excess  of  what 

19 

is  needed  to  obtain  redress,  is  to  commit  a wrong." 

"Reprisals,  or  the  punishment  of  one  ma,n  for  the  acts  of  an- 
other," says  Hall,  "is  a measure  in  itself  so  repugnamt  to  justice, 
and  when  hasty  or  excessive  is  so  apt  to  increase  rather  than 
abate  the  irregularities  of  a war,  that  belligerents  are  univers- 

19 

Hall,  International  Law,  (Sth  Edition),  363 


3^ 


ally  considered  to  be  bound  not  to  resort  to  reprisals  except 
under  the  pressure  of  absolute  necessity,  and  then  not  by  way  of 
revenge,  but  only  in  cases  and  to  the  extent  by  which  an  enemy 
may  be  deterred  from  a repetition  of  his  offence," 

It  shows  in  the  foregoing  paragraphs  that  disproportional 
reprisals  are  both  condemmed  in  peace  as  well  as  in  war. 

(?)  Privateering.  - It  had  been  pointed  out  that  the  prac- 
tice of  granting  special  letter  of  reprisals  to  individuals  and 
authorizing  them  to  seize  at  sea  an  equivalent  for  loses  from 
subjects  of  the  offending  state  has  entirely  disappeared  at  the 
present  time.  Indeed,  we  can  rarely  see  a single  instance  of  it 
since  Cromwell. 

One  of  the  most  interesting  instance  was  found  in  the  life 
and  death  contest  between  the  Normans  and  the  English,  In  1398, 
two  sailors,  the  one  Norman,  the  other  English  happened  to  quarrel 
with  each  other  in  the  port  of  Bayonne.  They  fought  at  the  begin- 
ning with  their  fists.  On  account  of  weakness,  the  Englishman 
stabbed  his  opponent  with  a knife.  The  civil  tribunal  was  request- 
ed to  intervene,  but  being  neglected  by  the  magistrates,  the  Nor- 
mans sought  help  from  their  King  Philip  le  Bel  who,  with  unpardon- 
able neglect,  permitted  them  to  take  their  own  revenge.  They 
immediately  set  out  to  sea  and  capturing  the  first  English  ship 
they  could  find,  hung  up  many  sailors  and  some  dogs  at  the  mast- 
head. The  English  retaliated  without  securing  authority  from  theii 
government.  Things  went  from  bad  to  worse  when  one  nation  made 
alliance  with  the  Irish  and  Dutch  and  the  other  with  the  Flemings 
and  Genoese.  Two  hundred  Norman  vessels  scouted  on  the  English' 
sea  and  killed  all  the  seamen  they  could  find.  Their  enemies  in 


-7TT 


ft.  rw^’n  V 
-' Si  '‘.; 

^ j i'  t ijli  5^  fit'  ^ io'b  /'<|i^‘C,  "i;  ’ 

' ’'It  • .V^ ' £u/  y xy,  af? 

«j'^'  !'■•  • • ■ iUm.,  ■•■  ‘••^■'•^  -A.  V ■■■■•  v**. 


M 


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■t;l^  — 


\ ‘t'>V 


a*  k*T 


■vV' 


.OH" 

b f . 


::  , ■fi.V'V^AW 


36- 


return  sent  out  a strong  fleet  to  destroy  the  Norman  vessels  and 

capture  a greater  part  of  the  Normans.  Not  only  no  quarter  was 

given  to  the  victims  but  the  captors  massacred  them  to  the  amount 

of  fifteen  thousand  men.  The  question  became  too  big  for  private 

hands,  and  the  governments  of  both  nations  began  to  interpose. 

”It  terminated  in  an  unfortunate  war  which,  by  the  loss  of  Guienne, 

entailed  upon  the  two  nations  an  endless  train  of  hostilities  till 

SO 

it  was  recovered.” 

Such  kind  of  retaliation  and  contre-retaliation  can  never 

extinguish  the  fire  of  revenge  but  increase  them  instead.  It  is 

brutal  and  inhuman.  It  cannot  reduce  the  nations  or  states  in 

quarrel  to  terms  of  peace.  It  cannot  prevent  war  but  hastens  it. 

Owing  to  these  circumstances,  the  present  practice,  or  law  of 

nations,  permits  privateering  or  private  war  by  sea  only  in  time  of 

21 

war,  never  in  time  of  peace. 

is)  The  Confiscation  of  Private  Property.  - It  was  a common 
practice  in  the  early  day  to  sell  immediately  the  property  seized 
by  Way  of  reprisals,  pay  the  injured  individual  compensation  out 
of  the  proceeds,  and  hand  over  the  balance  to  the  state  of  the 
aggressors.  The  reprisals  made  by  Cromwell  against  France  on  be- 
half of  an  English  Quaker  is  the  example.  But  at  the  present  time, 
the  offended  state  would  hold  the  property  seized  from  the  offend- 
ing state  until  a satisfactory  reparation  is  mads  for  the  alleged 

injury;  if  this  is  done  the  property  is  restored,  but  if  it  results 

22 

in  war,  the  property  is  confiscated. 

20 

Moore,  International  Law  Diisest,  Volume  VII,  13i 

21 

Moore,  International  Law  Digest . Volume  VII,  i22 

22  " 

Risley,  The  Law  of  ?/ar,  56  


/ 


3^ 

Thus  to  seize  the  property  of  the  offending  state  'by  way  of 
reprisals  and  hold  it  in  such  a manner  is  absolutely  justifiable. 
But,  on  the  other  hand  to  take  the  property  of  private  individuals 
as  security  for  the  reparation  of  public  wrongs  is  indefensible, 
except  on  the  ground  that  a state  and  its  subjects  are  so  far  one 
as  to  give  it  a just  claim  on  their  property  for  public  purpose, 
or  that,  as  being  stated  by  Bluntschli,  the  offending  state  has 

23 

unjustly  seized  the  property  of  the  subjects  of  the  injured  state. 
Therefore,  as  when  a man’s  property  in  form  of  land  is  taken  for 
public  roads,  he  is  entitled  to  have  claim  for  compensation,  so, 
when  a man  loses  his  property  by  the  violent  measure  adopted  by 
the  foreign  state  against  his  own  country,  not  he,  but  his  state 
ought  to  make  his  loss  good. 

To  confiscate  a loan  payable  to  private  subjects  by  way  of 
reprisals  is  also  unjustifiable.  In  1744  when  Great  Britain  was 
at  War  with  France  and  Spain,  Prussia  maintained  her  neutrality 
very  strictly.  Towards  the  end  of  1’74S,  however,  Prussian  subjects 
began  to  take  French  cargoes  by  their  ships  and  use  neutral  vessels 
of  other  nations  to  carry  their  own  trade.  Consequently  several 
of  their  ships  were  captured  and  condemned  by  the  British  govern- 
ment. By  way  of  reprisals,  the  King  of  Prussia  confiscated  a loan 
of  £80,000  dued  to  certain  British  subjects  which  was  secured  by 
•the  revenues  of  Silesia.  The  British  government  upheld  the  prin- 
ciples embodied  in  a long  and  celebrated  document  prepared  by  Sir 
George  Lee  and  Mr.  Murray  (afterwards  Lord  Mansfield),  and  said 
that  with  regard  to  reprisals,  they  v;ere  only  allowable  in  two 
cases  - where  a violent  wrong  is  convicted  and  upheld  by  the  public 

23 

Woolsey.  International  Law^,  182-163,  N.2 


W .v?v;rij‘^  tv; A vx  * 7/«4 ,56’  ■'^■ 

iff*'--  ■.  . ' ^ “ '1  ■■  ;“  ^ s. ' ' ' 'i 


'■  --L  »U-  ■ JW  KT  ..'  ,4yy<;-.;.mS;  r v 

. wiiffc  ■^■:»iL*:.i  ^di  :«  t ;^: tL 


V ■■  ■t  ■ iB.Vi -’^•3*^- .{’•  -‘  ■M'  t 

<'  ■ ^ 'H; 

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.■/i  ‘‘  '■  ' ■'.  - - ‘ - V-  .•;.'?  ' K J " i>  ' 


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37 

autiiority,  or  when  a justice  had  been  denied  in  the  courts,  or  by 
the  government  of  a state  and  that  in  no  case  can  it  be  lawful 
to  confiscate  a debt  payable  to  private  individuals  by  way  of 
reprisals  for  wrongs  done  by  their  government. 

The  matter  was  finally  settled  by  the  Treaty  of  Westminster, 
1756,  by  which  Great  Britain  paid  Prussia  £30,000  in  discharge  of 
all  claims  under  condition  that  the  latter  would  pay  off  the  loan 
according  to  the  original  contract. 

•'The  British  view  as  to  reprisals  and  the  justice  of  confis- 
cating debts  to  meet  public  claims,”  says  Risley  in  his  "Law  of 
War’,'"  met  and  still  meets,  with  universal  approval."  In  speaJjing 
of  the  same  case  Taylor  says  "it  is  now  generally  conceeded,  as 

a matter  of  policy,  if  not  of  principle,  that  a public  debt  is 

34 

secure  against  reprisals  in  peace  and  war," 

(9)  The  Viols.tion  of  Contra.ct.  - Should  a contract  be  violat- 
ed by  one  of  the  parties  and  should  satisfaction  as  provided  for 
(by  the  contractual  stipulation)  be  refused,  it  is  justifiable  for 
the  party  wronged  to  adopt  measures  of  reprisal.  This  involves, 
however,  a seizure  of  the  goods  of  the  defaulting  party  only.  The 
seizure  of  persons  will  not  be  allowed.  The  goods  seized  consti- 
tute a pledge  by  which  satisfaction  for  the  wrong  may  be  secured, 

35 

if  the  verdict  eventua,lly  went  agadnst  the  defaulter. 

(10)  Hostile  Embargo,  - There  are  two  kinds  of  embargoes: 
the  pacific  embargo  and  the  hostile  embargo.  The  pacific  embargo 
involves  nothing  more  than  a detention  of  ships  in  port  and  it  has 

34 

Taylor,  International  Public  Law,  443 

35  ' 

Phillipson,  The  International  Law  and  Custom  of  Ancient  Greece 
and  Rome . Volume  I,  140-141 


'.ft"'  • ' 


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r^  '■•  .1  I ? 


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2>S 

no  necessary  connection  with  any  atteinpt  to  redress  an  injury 
received.  But  hostile  embargo,  on  the  other  hand,  consists  in  the 
detention  of  ships  in  the  attempt  to  redress  a wrong.  The  best 
illustration  is  as  follows.  After  the  rupture  of  the  Peace  of 
Amiens,  Great  Britain  believed  that  Holland  was  only  waiting  for  a 
chance  to  join  Fre.nce  against  her.  An  embargo  was  issued  to  detain 
all  Dutch  vessels  anchoring  at  British  ports  for  the  purpose  of 
inducing  the  Dutch  to  give  up  the  scheme  of  alliance  with  Napoleon, 
It  was  an  embargo  in  form  of  reprisals.  The  aim  was  not  realized. 
War  broke  out  and  the  legal  question  of  the  original  seizure  of 
Dutch  vessels  came  before  a prize  court.  Lord  Stowell  held  the 
view  that  the  embargo  was  at  first  equivocal  in  its  legal  aspects, 
and  that  its  real  character  could  be  determined  by  events  following 
it.  If  war  occurred, its  commencement  would  make  the  seizures  bel- 
ligerent captures  from  the  first.  If  satisfaction  was  made  and 
friendship  restored  between  the  two  states,  the  original  seizures 
meant  nothing  more  than  a temporary  sequestration  so  that  the 
proprietory  rights  of  the  property  could  not  be  disturbed. 

As  time  went  on,  commercial  interests  grew  between  nation 
and  nation,  and  when  a sense  of  justice  gradually  developed,  the 
practice  of  hostile  embargo  was  discontinued.  In  the  modern  times, 
belligerents  have  gon^  a step  further  by  allowing  the  enemy’s 
merchant  vessels  to  leave  their  ports  at  the  commencement  of  war. 

(ll)  Hostije  Tariff.  - Although  a country  has  an  absolute 
freedom  or  complete  right  to  lay  duties  on  foreign  goods  entering 
into  her  port,  yet  from  the  view  point  of  international  comity,  a 
hostile  tariff  should  not  be  laid  against  friendly  nations.  Mr, 
J.S.  Mill  said,  ”a  country  cannot  be  expected  to  renounce  the 


T'  ■ ' ■ l.tVSli  1 


• •’*-  v4*,)f  2 <>:■'»■> ->^‘^!e^w';  iv,?/ '‘;T‘#’WTOOl^  li  Vj 

r'  '«I  ■-•■■'  '•  '-  »■.'■'■  ■ 

W 4vo-'-i\  aial;  ' *■  - --  - • ■ - ^ ^ 


' ► • •.,*f«l  I ;^e'u'tf^jurirtr 


power  of  taxing  foreigners  unless  foreigners  will  in  return  prac- 
tice towards  itself  the  same  forbearance.  The  only  mode  in  which 
a country  can  save  itself  from  being  a loser  by  the  revenue  duties 

imposed  by  other  countries  on  its  commodities,  is  to  impose  corres- 

26 

ponding  revenue  duties  on  theirs."  It  is  apparent  that  he  admits 

the  right  of  retaliation  against  hostile  tariff.  It  was  by  this 
in 

right  that ,^1697-1700,  Fla.nders  retaliated  because  of  the  English 
prohibition  of  Flemish  lace  by  excluding  English  woolens.  It  was 
again  in  exercising  the  same  right  that  Brazil  once  threatened  to 
tax  German  manufacturers  bacause  the  latter  had  raised  the  duty 
on  coffee,  which  greatly  affected  interests  of  Brazil  as  her  coffee 
had  been  largely  consumed  in  Germany. 


26 

John  M.  Robertson,  Trade  and  Tariffs . 221 


‘ m ^ ,.r ; ",  -isi^  -.ei4i4-io4ilii£j«'<>'?ox'&At^^^^ 

Ilf  .io  : i ;-*'ciB#»/.ii4i«rtt-.  '*-  ‘' 


jA'j  i .;  •»,.  j $h- . VI.  Jf-.  £ * mIv 

Lr 


' „ < ''’^  '-'■  'VM;®;*  -'.' 


,:-m< 


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«cMsi!-'^',^  ■ -«  >$mm: 


y.‘ 


CHAPTER  V 


^ o 


The  Justification  of  Reprisals  in  War  - 
Conclusi on 

As  reprisals  are  important  in  times  of  peace,  so  they  are 
important  in  times  of  war.  It  is  true  that  in  peace  time  some 
kinds  of  reprisals  may  he  iusti liable  while  others  may  not  he.  This 
is  also  true  in  case  of  reprisals  in  war.  In  the  following  para- 
graphs particular  attention  will  he  paid  to  the  discussion  of  the 
laws  of  war  in  relation  to  reprisals  a.nd  the  just  and  unjust  appli- 
cation of  war  reprisals. 

The  question  of  whether  any  limit  at  all  can  he  placed  on 
breaches  of  the  laws  of  war  hy  way  of  reprisals  is  very  important. 
In  relation  to  this  question,  the  Russian  proposals  which  formed 
the  basis  of  discussion  in  the  Brussels  Conference  can  never  fail 
to  arrest  our  earnest  attention.  The  proposals  enhodied  in  the 
draft  were  as  follows: 

^69  "ReprisaJs  are  admissible  in  extreme  cases  only,  due  re- 
gard being  paid  as  far  as  shall  he  possible  to  the  laws  of  humanity, 
when  it  shall  have  been  unquestionably  proved  that  laws  and  customs 
of  war  have  been  violated  by  the  enemy  and  that  they  have  had  re- 
course to  measures  condemned  by  the  law  of  nations." 

$70  "The  selection  of  the  means  and  extent  of  reprisals 
should  be  proportionate  to  the  degree  of  the  infraction  of  law  com- 
mitted by  the  enem.y.  Reprisals  that  are  disproportionately  severe 
are  contrary  to  the  rules  of  international  law." 


'V  - 


f . ■ . * rfSi,  ''V'"^/  n , ' ■<:■".  *'j'  . ^-*  'f<..i>., 


IT  *‘ 


■ 'V* ' 'V  f.-'’,  ''^■^■^‘«  ?l 


^ ^ i.  -^  • jfj,,!  ii-i^  ^Uspf ’Ife 

tl....,.w  -“^ 


. .!■•  . - w» 


■♦/♦•p  ' *'•  i:V^  - *■  "■'I 


.<!.n  '1^5 


4/ 

$71  ’’Reprisals  shall  be  allowed  only  on  the  authority  of  the 
corrunander-in- chief,  who  shall  likewise  determine  the  degree  of  th^ir 
severity  and  their  duration.” 

The  Brussels  Conference  declined  to  discuss  even  such  a moder- 
ate proposition  for  they  felt  that  reprisals  of  a severe  character 
could  not  be  discussed  calmly.  The  subject  was  dropped. 

The  Hague  Regulations  also  contain  nothing  on  this  subject. 

The  delegates  of  the  Hague  Convention  thought  that  it  was  better  to 
leave  the  rules  concerning  ’’the  usages  established  between  civilized 
nations”  to  humanity  and  conscience. 

But  the  Manua-1  of  the  Institute  of  International  Law  formu- 
lated the  following  articles  which  indicate  great  progress  in  the 
development  of  the  law  of  war  concerning  reprisals. 

85  "ReprisaJls  are  forbidden  whenever  the  wrong  which  has  af- 
forded ground  of  complednt  has  been  repaired." 

86  ”In  the  grave  cases  in  which  reprisals  become  an  imper- 
ative necessity,  their  nature  and  scope  must  never  exceed  the  meas- 
ure of  the  infraction  of  the  laws  of  war  committed  by  the  enemy." 

"They  can  only  be  made  with  the  authorization  of  the  command- 
er-in chief," 

"They  must  in  all  cases  be  consistent  with  the  rules  of  human- 
2 

ity  and  morality." 

We  must  observe  that  the  second  clause  in  $69  of  the  Russian 
proposition  for  the  Brussels  Conference,  "as  far  as  shall  be  possi- 
ble," Was  replaced  by,  "in  all  cases,"  in  the  last  clause  of  article 

1 

Westlake,  International  Law.  Part  II,  War,  112 

2 

Westlake,  International  Law . Part  II,  War,  113 


45, 


66  in  the  Manual  of  the  Institute  of  International  Law,  and  that 
article  65  was  new. 

Nevertheless,  the  ManuaJ  of  the  Institute  of  International 

Law  did  not  give  us  the  precise  definition  of  the  right  of  re-prisals. 

in  War.  The  defect  has  called  for  a zealous  examination  of  the 

principle  on  which  it  rests,  in  order  that  no  false  theoretical 

view  may  induce  nations  to  practice  the  reprisals  in  excess.  The 

principle  is  thus  put  by  Lueder  in  the  following  form. 

"The  right  not  to  observe  the  laws  of  war  exists  in  the  case 

of  retorsion  because,  according  to  known  maxims,  non-fulfilment  by 

one  party  deprives  that  party  of  the  right  to  claim  fulfilment  by 

the  other.  At  least  this  may  be  the  case  in  war  where,  if  the  vio- 

IcLtions  of  the  laws  of  war  by  the  enemy  were  passed  without  retali- 

a.tion,  a belligerent  would  be  at  a disadvantage  and  worse  off  than 

his  enemy  who  was  guilty  of  the  violations,  with  reference  to  the 

end  which  has  to  be  striven  for  by  all  means,  namely  breaking  down 

3 

the  determination  of  the  other  side  and  gaining  the  victory." 

The  main  point  of  this  principle  may  be  shortened  into  one 
simple  sentence,  nacfiely  in  time  of  war  a mutual  obligation  is  dis- 
solved by  the  failure  of  one  party  to  perform  it.  Mr.  Oppenheirn 
holds  that  when  usages  of  wa^rfare  have,  by  custom  or  convention, 
become  laws  of  warfare,  they  are  binding  upon  all  belligerents  un- 
der all  circumstances  except  in  the  case  of  reprisals  as  retaliatio:: 

against  a belligerent  for  illegitimate  acts  of  warfare  committed  by 

4 

the  members  of  his  armed  force  or  his  other  subjects. 

3 

Westlake,  International  Law,  Part  II,  War,  114 

4 

Oppenheirn,  International  Law.  Volume  II,  76 


nj  "5  Y ^ 


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t>|Ri>.  :j/i» .«••.•.*  :■  , ,iu?.-i'.>,  ; 'y? j,affc4>,"r 

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43 


Messrs,  Wilson  and  Tucker  also  say  that  retaliation  and  other 

methods  once  resorted  to  are  now  prohibited,  except  as  punishment 

■ 5 

for  the  breach  of  the  laws  of  war.  If  a state  wrongs  another  in 
times  of  peace,  the  injured  state  may  secure  redress  by  threatening 
or  opening  hostilities;  but  when  the  two  nations  have  already  en- 
gaged in  war  this  method  of  redress  is  not  possible.  If  the  laws 
of  war  are  violated  three  methods  of  obtaining  satisfaction  may  be 
used. 

Cl)  The  injured  belligerent  may  punish  the  offending  enemy 
soldiers  or  nationals, 

(s)  He  may  protest  against  the  other  belligerent  and  claim 
compensation. 

(3)  If  the  actual  offenders  cannot  be  reached  and  if  satis- 
faction has  been  refused,  the  injured  state  may  resort  to  reprisal 
The  last  method  of  securing  compliance  with  the  laws  of  war 
ought  to  be  adopted  only  in  last  resort.  Reprisals  survived  from 
the  lex  tations-  an  eye  for  an  eye,  a limb  for  a limb,  a life  for 
a life.  They  are  the  saddest  among  ail  the  necessities  of  war. 

Many  examples  of  the  most  atrocious  cruelties  committed  under  the 
pretext  of  reprisals  may  be  easily  found  in  history.  Yet  one  can- 
not see  how  they  can  be  abolished. 

”The  whole  international  code,”  sa.ys  Wheaton,  ”is  formed  upon 
reciprocity.”  If  the  established  usages  of  war  have  been  violated 
by  one  belligerent,  his  adversary  has  the  duty  and  right  to  retali- 
e,te  for  the  purpose  of  preventing  further  excesses.  In  all  events, 

5 

Wilson  and  Tucker,  International  Law , 7th  Edition,  265 

6 

Spaight,  War  Ri^ht  on  Land,  461-462 


CD  CO 


.Vi'  1 i ■’  yi^i4v 


"1^ 




*1 


i#»tj!ot  j»ia;5sa^^  *1 


y>  V w* 


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t.M  -.fstTi^:-  V .■•<.v;ci.  ' ..t^"*  W vw^;  ! 

’•■  ■?  !{*a'  • *'.  * ' •"■'..  .«■  . ’ ViJ,'. ■.;./.>>■  ■ V •■• 

^3P^' 


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■r  .'  r •’■  « : ' ■ 'V  . -.-'ll  tv 

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.rv,  -■  >' .,  ■ . . . % ■ ■ . , S”  ' I ' 


4.’-'i''5‘4^‘jn  , ’•  • ^’»{-'i  r , • • ^ ' 7W'"  .\Wj  , :,  ' r*  *”  (I 

5'  ■ ^ . ' ■ ■•  ■ ^ ^ ' -'^  ^ ^ ^’f ‘ 

^ iL-^ f / .!-  i ;.., V iJui)  >rr~  t 

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I 


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Alt 

retaliation  should  consist  of  the  repetition  of  the  saiBe  or  similar 

acts,  and  as  far  as  possible  it  should  be  inflicted  upon  the  actual 
7 

offender.  Alexander  told  Darius  that  if  the  latter  continued  to 
make  war  without  quarter,  he  could  not  secure  quarter.  This,  if 
done  would  be  a just  reprisal.  While,  on  the  other  hand  the  des- 
truction of  Corinth  on  account  of  injuries  to  the  Roman  Ambassa.dors 
has  been  condemned  as  excessive  retaliation.  The  burning  of  the 
Emperor’s  palace  on  1660  in  retaliation  for  Chinese  cru.elty  to 
Europeans  captured  in  ambush  was  also  unjustifie.ble . Robert  E.  Lee, 
the  great  Confederate  general  had  been  admired  for  his  expressed 
disapproval  of  Early’s  burning  of  Chambersburg,  in  spite  of  the 
fact  that  it  was  done  by  way  of  reprisals  for  Hunter’s  destruction 
of  property  in  the  Valley  of  Virginia.  When,  in  the  course  of  war, 
the  Union  government  set  southern  sla.ves  free  and  put  them  in  the 
army,  the  Conf edera.tes , refusing  to  recognize  them  as  enemy  sol- 
diers, threatened  them  as  revolted  slaves.  No  quarter  was  granted 
to  these  poor  victims.  Whereupon  President  Lincoln  threatened  the  ■ 
execution  of  Confederate  prisoners  of  war  as  retaliation  in  kind. 

As  slaves  were  not  deserters  in  any  proper  sense,  the  Union  govern- 
ment after  having  enrolling  them  in  the  army,  could  not  have  done 
less  than  protect  them  by  retalia,tion.  While  reprisals  on  helpless 
prisoners  are  the  most  cruel  and  object! oneJ.  form  of  vengeance, 
sometimes  they  will  be  the  only  available  method  for  stopping  a 
repetition  of  the  offence  or  for  securing  the  punishment  of  the 
guilty . 

Thus  it  is  evident  that  in  exercising  reprisals  in  time  of 
war  only  the  same  or  simila.r  acts,  no  equiva.lent  acts,  are  permit- 

Taylor,  International  Public  Law.  468-489 


3ftj  i'.  o<i?>*  •»  V • ;■  x>j4icif>?b^^  • 


^'<■4*  .’  . ....  »‘*iv';.v  ' ; 


'’  - * '•■  •'  ■-  .*■'^24.'  ■ :: 'm  i l-  to  ’ 8f,'>  xi®  S't>  i4vi3MpS.«^X®" 


4^ 

ted.  The  reasons  are  that,  in  the  first  place,  wrongs  cannot  he 

balanced,  and  that  the  enemy,  in  failing  to  appreciate  the  justice 

of  the  remedy  adopted  may  find  himself  justified  in  still  further 

departing  from  the  accepted  usages  and  may  so  be  inclined  as  to 

6 

neglect  any  established  rules  of  civilized  warfare. 

"Wherea-S  reprisals  in  time  of  peace”  says  Professor  Oppen- 
heim,  "are  admissible  for  international  delinquencies  only,  repris- 
als between  belligerents  are  any  act  of  illegitimate  warfare, 
whether  the  acts  constitute  an  international  delinquency  or  not." 
When  a belligerent  is  wronged,  it  is  for  him  to  consider  whether 
he  will  at  once  resort  to  reprisals  or,  before  doing  so,  he  will 
lodge  a pretest  with  the  enemy  or  neutral  states.  Practically  a 
belligerent  will  not  resort  to  reprisals  at  once  unless  the  viola- 
tion of  rules  of  legitimate  warfare  is  very  grave  and  the  safety 
of  his  troops  requires  immediate  drastic  measures.  In  other  words, 

reprisals  are  justly  regarded  as  only  the  last  resort  in  cases  of 

9 

absolute  necessity.  Thus  the  Germans  during  the  Franco-German  war 
frequently  bombarded,  by  way  of  reprisals,  the  undefended  French 
villages  where  their  soldiers  had  been  treacherously  murdered  by 
enemy  individuals  in  ambush  who  did  not  belong  to  the  armed  forces. 
Lord  Roberts,  during  the  South  African  war  ordered  by  way  of  repri- 
sals, the  destruction  of  houses  and  farms  in  places,  where  his  line 
of  communication  was  damaged. 

A belligerent  possesses  the. right  of  punishing  persons  who 
violate  the  laws  of  war,  if  they  fall  into  his  hands  and  of  punish- 

8 

George  E.  Davis,  Elements  of  International  Law,  326 
9 

Wylie,  F.E.,  Smith  International  Law . 4th  Edition,  162 


4^ 


ing  innocent  persons  by  way  of  reprisals  for  violations  of  law 

10 

cor/!iiiitted  by  others,  | 

To  the  exercise  of  these  rights  there  is  no  objection  express-j 
ed,  so  long  as  the  belligerent  confines  to  punishing  breaches  of  | 
universally  recognized  laws . It  is  justifiable  to  punish  persons 
who  have  been  convicted  of  poisoning  wells,  of  assassination,  of  | 
marauding',  of  the  use  of  a flag  of  truce  to  obtain  information,  or  : 
of  employing  prohibited  wee-pons,  etc. 

The  principle  of  humanity  condemns  all  methods  of  warfare  tha'i 
make  possible  gratuitous  cruelty,  savagery,  or  treachery,  the  ill- 
treatment  of  the  helpless  and  the  disarmed,  including  the  wounded 
and  prisoners,  the  aged  and  feeble,  women  and  children.  ?iihere, 
however,  one  of  the  belligerents  persistently  violates  the  princi- 
ples of  the  laws  and  usages  of  war,  the  other  is  permitted  to 
adopt  measures  of  reprisals,  for  compelling  the  law-bres-king-  com- 
batant to  discontinue  his  conduct,  and  to  exact  reparation.  But 
such  should  be  resorted  to  only  on  the  authority  of  the  government  ■ 
or  the  commander  after  the  truth  of  the  enemy's  guilt  has  been 
established,  and  after  the  enemy  has  failed  to  stop  the  misconduct. 
They  must  not  b e applied  in  a spirit  of  vindictiveness;  for  the 
purpose  is  to  obtain  justice  and  to  ensure  complaince  with  estab- 
lished rules.  They  should  not  be  disproportional  to  the  original 

offence  committed.  The  principle  of  justice  and  humanity  should 
11 

be  observed.  Parthermore  the  true  basis  of  the  right  of  reprisals 
in  War  is  ”not  the  impairment  of  any  obligation,  but  the  redressing, 

10 

Hall,  International  Law , 7th  Edition,  436 

Coleman  Phillipson,  Wheaton's  International  Law.  470 


•re 


« ■ .i-X- : ;.  V- 

^ " oa  \t  V ' «,«.{js^,t^,  . t/itr,; 'Ci;^j«Slw.ii’^ 


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~ ’ i *'■  ' ^ 1 


X 


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. ^ iXi! 

y,— *faS  ^.T  ,i|1 

' * 1 * • 


»4» 


..  V"^  ".,  *'**  *“  '^'  * **  * ® ^^'■^’AiilSil  \i5wi '• 


ri> 


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St  *•■  ?■: 


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‘H' 


. vJ  = ES-r.  ■'>’■«#  ^ «*■ 


by  puniohiTient  or  the  exaction  of  damages,  of  a violated  obligation.” 

Arbitrariness  in  reprisals  is  very  dangerous,  for  either  the 
alleged  facts  which  call  for  the  resort  to  reprisals  are  often  not 
sufficiently  verified,  or  the  rules  of  war  which  a belligerent  con- 
siders violated  by  his  enemy  are  sometimes  not  universally  recognia- 
ed,  or  the  act  of  reprisals  performed  is  often  excessive  in  cornpar- | 

ison  with  the  precedent  act  of  illei?itimate  warfare. 

13  i 

Three  cases  may  illustrate  this  danger. 

(a)  In  1762,  Joshua.  Huddy,  a captain  in  the  army  of  the 
American  insurgents  was  taken  prisoner  by  the  loyalists  and  handed 
over  to  a British  captain,  Lippencott,  in  the  hope  of  being  ex- 
changed, but  was  arbitrarily  put  to  death,  Lippencott  was  arrested 
by  the  commander  of  the  British  troops  and  ordered  to  be  tried  for 
murder,  Lippencott  wa.s,  however,  acquitted  by  the  court-ma.rtia,l  as 
evidence  showed  that  he  had  done  the  brutal  act  under  orders  of  a 
Board  which  he  was  obliged  to  obey.  Thereupon,  some  British  offic-> 
ers  who  were  held  prisoners  in  the  hands  of  the  Americans  were 
compelled  to  cast  lots  to  determine  who  should  be  executed  by  way 
of  reprisals  for  the  execution  of  Huddy.  The  lot  fell  on  a young 
captain  by  the  name  of  Argill . He  would  have  been  executed  if  the 
Queen  of  France  had  not  mediated  and  saved  him. 

(b)  The  British  government  had  captured  twenty-three  Irishmen 
who  had  been  naturalized  in  the  United  States  and  were  serving  as 
seamen  on  American  vessels.  They  were  ordered  to  be  tried  for 
trea,son.  The  Congress  of  the  United  States  authorized  the  Presi- 

12 

Westla.ke,  International  Law . Part  II,  114 
13 

Oppenheim,  International  Law.  Volume  II,  260-263 


]'-  ' c , * ■ ;■  ' ''''  ’ .' '-i,  •'  ^ ■'  ’'V  /4  '■*  ** 

H~  t-s  * w..  t/.aT’  ii  • h'&mii(ip7  T,i\Uf‘hi Wi Jfr’  ■ 


^ ■■  '•■  ■'  ■ r '{  •‘■ISa'  ‘ '•*■■■•  ■ ' 

■ ••*sfl*ll  <«y  J ^-‘4  ’''I 


.•*•  "I 

■4.  ^ • i • ’ 


. - ' ‘ '-  ■ , S :V  “ ' ;.i«? 


l.*A 


■*». 


. ' '^r  ■I-.'™" 

' iui  ’ , •'  . ; tkbK'  V^H,ixv*  j>. 


. ^ 

■ 


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' • - A U ;"T  ; ■.  t .$  -L*  J-iSf 

• ►•-  . V ■- 


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' •■  ,JT»*?  v;-.  , ■'Vi^’^^.'i^.i; '*  v;;  ^ ' 4 '•-;^  & .'Silf  if 

t^t:;  ,t:U^igf 

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f’  .'  , 


1^ ' :<  ^ a-*.,? 


siifeflKir^  ■•„>../  V'  . 


i'  • 


48 


dent  to  retaliate.  Under  this  authorization.  General  Dearborn 
placed  in  confinement  twentj'"- three  English  prisoners  taken  at  Fort 
George.  Lord  Bathurst,  directed  General  Prevast  to  order  the  close 
imprisonment  of  double  number  of  commissioned  and  non-com.missioned 
American  officers.  A threat  followed  that  if  the  measure  of  retal- 
iation was  pursued,  unmitigated  severity  against  American  citizens 
a.nd  villages  would  be  applied. 

When  Mr.  Madison  retorted  by  putting  into  prison  a similar 
number  of  British  officers  taken  by  the  United  States,  General 
Prevast  inmiediately  retaliated  by  subjecting  all  his  prisoners  to 
the  same  discipline.  The  hot  temper,  however,  was  subdued  on  the 
part  of  England. 

"A  party  of  American  officers  who  were  prisoners  in  England 
were  released  on  parole,  with  instruction  to  state  to  the  President 
that  the  twenty-three  prisoners  who  had  been  cha.rged  with  treason 
in  England  had  not  been  tried,  but  remained  on  the  usual  basis  of 
prisoners  of  war.  This  led  to  the  dismissal  on  pa,role  of  all  of- 
ficers of  both  sides.” 

(c)  During  the  Franco- German  war,  the  French  had  captured 
forty  German  merchant  vessels  and  made  their  ca.pt ains  and  crews 
prisoners  of  war.  Count  Bismarck  who  considered  this  to  be  against 
international  law,  demanded  their  release  and  after  it  had  been 
refused  by  France,  ordered  by  way  of  reprisals  the  arrestment  of 
forty  French  private  individuals  of  local  importance.  The3r  were 
sent  as  prisoners  to  Bremen  where  they  were  kept  until  the  end  of 
the  War.  ’’Count  Bismarck  was  decidedly  wrong,  since  France  had  in 
no  way  committed  an  illegal  act  by  retaining  the  German  crews  as 
prisoners  of  war." 


uh  f . ' - 4 ‘ *.^r‘,<f  ¥i  ««'’.Ef^  •*  ^ ^.i  ' 


BC\jf’  ■..  iJ'*' ‘ • ■'  ' ,-  V ,.^*'-  i*.  >.  'ii 


»V  < 


< ir  .,  ^ .1;'"%;  ■' 


'■^  'X:,l  ■ ■ ? 


r“i'^:A»*«ft&'I/«  . 


. : ivWd'i-D  ••i>.r‘J.-#ffe.'>-:"  U.1*  ;-r 

^■! .-  ■ ■ 'ff 'AJ  .*•+:(  . •’v'*  ■ 4 , .*. 


' ''  ' ■ ‘/"‘■-;V^I<r-:-.  i 


b,...- 

'•  /iSa*  iVi*’}'  Sf  .S« 


— 

The  danger  of  arbitrariness  in  reprisals  in  time  of  war  may 

be  avoided  if  the  following'  restrictions  can  be  strictly  observed. 

14 

(1)  "For  violation  of  laws  and  usages  of  war.” 

(2)  "By  an  ’offender  beyond  reach'.” 

(3)  "In  case  of  ’necessity’  only." 

(4)  "Within  duties  of  ’humanity'." 

(5)  "Proportioned  to  offence." 

(0)  "Only  in  case  of  ’injury  not  repaired’." 

15 

(7)  "The  offence  in  ouestion  must  have  been  inquired  into." 
(b)  "Redress  for  the  wrong,. or  punishment  of  the  real  offende 
must  be  unattainable." 

(9)  "The  reprisals  must  be  authorized,  unless  under  very 
special  circumstances,  by  the  commander-in-chief." 

Having  studied  the  justification,  danger  and  restrictions  of 
reprisals  in  time  of  war,  we  can  now  proceed  to  discuss  reprisals 
in  war  upon  prisoners,  resident  enemies,  and  non-combatants,  and 
reprisals  in  war  consisting  in  the  bombardment  of  towns,  confisca- 
tion of  private  property,  aerial  attacks,  the  use  of  mine,  contra- 
band on  food-stuffs,  the  distruction  of  hospital  ships,  the  use  of 
gas  and  the  refusal  of  quarter. 

(1)  Reprisals  Upon  Prisoners  of  War.  - 34r.  Paul  Carpentier  is 
of  the  opinion  that  to  execute  prisoners  is  to  break  the  quaai- 
contrext  made  with  them  when  they  agree  to  surrender;  but  most 
jurists,  like  Professor  Fillet,  would  maintain  that  the  captor  has 
the  power  to  adopt  such  measures  in  very  extreme  cases.  The  German 

14 

(l)-(6)  Naval  War  College . International  Law  Discussion.  1903,  43 

15 

(?)-(9)  Holland,  The  Law  of  War  on  Land,  61 


t .1*^,  , 'TYPW.-IT 


■ io  s ; |»i*i€  ‘ df  di  'vjS 

^ ' ■ . ’>U* 


-vn-v'v,r..- 


i;^'tixtiij  liiilpi,  oifT^SS®'  ■> 

..w  4 R*I  w , 1 


• a.  ^ r Mr  ,1.9  il !jOf\  .irrr4.g^';v,i«Sio.v4?W-; 

*<i  ,U|^  fr-v,|W5?| 

I * V *'  ICi- ae4jj^  »V^VjtV’  '('^r  V 


*..■  t-i 


ki 


'1^'^?  . •i.a.ia-ierl^i.u/ . ?•?  .(yj  :,<«* 

, i^:  n$s  ".  Jjf)  .'«  ' V 


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» *«.  - ■ 

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;'T'  1 

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■•  *■  " ■■■"■“'  •? ..  i'^5^ 

'r-^7‘7  i.:.  xrw  • 

’*■  "^  . ^ ''T'  *"  * ■ ‘/-.ji  f ' * ■^  '■-  «-■'  ••  ' ’•  'y  ^ %'  *‘'^^Jl'\‘  j ' 

,.4--  .5,  ,,,  ?',  i ..'n«k '.V  l^v^o.k,v^^jsitsT.^.‘-W^.4W^l-^^ 

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^ ‘ ^ ,.,‘vr-  ff  .' . .4!.'  . k-.  I 


'V. 


50 


Manual  gives  sanction  to  kill  prisoners  of  war  in  unavoidaTole  cases 

of  urgent  necessity.  '‘Every  prisoner  of  war,"  says  article  59  of 

The  American  Instructions,  "is  liable  to  punishment  by  way  of  repri 

sals,"  "When  the  infraction  complained  of,"  says  Mr.  Bonfils, 

"emanates  from  soldiers,  it  is  on  soldiers  especially  that  reprisal 

15 

must  be  inflicted." 

During  the  American  Civil  war,  when  the  Confederates  refused 
to  recognize  the  negroes  who  had  been  enrolled  in  the  Union  Army 
as  soldiers  and  to  grant  them  quarter  when  they  v?ere  captured,  the 
Union  government,  threatened  to  retaliate  by  refusing  quarter  to 
the  southern  soldiers. 

There  were  many  cases  in  relation  to  the  treatment  of  prison- 

16 

ers  during  the  World  War.  According  to  the  German  regulations,  the 
prinsoners  were  only  permitted  to  write  two  letters  each  month  and 
one  postal  card  per  week.  Books  and  periodica.ls  were  put  under 
investigation  before  they  were  sent  to  the  prisoners.  No  ne?/spaper 
was  admitted  to  the  German  prison  camps,  not  even  German  papers, 
until  the  end  of  March  1915. 

The  Prussian  Minister  of  War  issued  an  ordinance  on  February 
3,  1915  by  which  the  prisoners  were  prohibited  from  writing  their 
letters  with  ink.  Exchange  of  correspondence  betwreen  prisoners  of 
different  camps  was  not  allowed,  unless  the  letters  were  relating 
to  family  affairs.  Many  complaints  were  made  that  in  some  camps 
the  prisoners  were  not  allowed  to  write  at  all.  They  might  be 
required  to  write  in  German,  Prior  to  September  1915,  communica- 

15 

Spaight,  War  Rip-ht  on  Land.  465 

Garner,  International  Law  and  the  World  War,  Volume  II,  37-53 


■ ^ ^ n ' ‘ 


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tion  with  prisoners  in  the  occupied  territories  of  Belgium  and 
France  was  not  allowed,  nor  could  parcels  containing  food  be  sent 
to  the  French  prisoners  in  those  places.  Letters  addressed  to  the 
prisoners  were  not  delivered  but  sent  back  to  the  senders. 

Against  this  harsh  restriction,  the  French  government  protest- 
ed and  abandoned  its  early  liberal  policy.  France  also  protested 
against  the  long  and  unreasonable  delays  in  the  delivery  of  letters 
and  parcels  sent  to  the  prisoners  in  Germany.  The  letters  were  de~ 
layed  for  a period  of  ten  days  before  sending  them  to  the  addressee. 
It  has  also  been  alleged  that  the  letters  were  sometimes  held  in 
the  hands  of  the  German  authority  of  more  than  a month.  On  July  4, 
1915,  the  French  Minister  for  Foreign  Affairs  told  the  German 
authorities  that  unless  measures  were  ma.de  to  remedy  the  abuse,  the 
French  government  would  impose  by  way  of  reprisals,  a systematic 
delay  in  the  delivery  of  letters  to  German  prisoners  in  some  camps. 
The  protest  and  the  threat  produced  no  effect  and  the  measure  of 
reprisals  was  carried  out. 

With  regard  to  employment  of  prisoners,  articles  6 of  the 
Hague  regulations  provides:  ”The  state  may  employ  the  labour  of 

prisoners  of  war,  other  than  officers,  according  to  their  rank  and 
capacity.  The  work  shall  not  be  excessive,  and  shall  have  no  con- 
nection with  the  operations  of  war.  Prisoners  may  be  authorized  to 
work  for  the  public  service,  for  private  persons,  or  on  their  own 
account.  Work  done  for  the  state  is  paid  for  at  rates  proportional 
to  the  work  of  a similar  kind  executed  by  soldiers  of  the  national 
army,  or,  if  there  are  no  such  rates  in  force,  at  rates  proportion- 
al to  the  work  executed.  When  the  work  is  for  other  branches  of 
the  public  service,  or  for  private  persons,  the  conditions  are 


r if  ;^F*  : : ■ ',  ■ 

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settled  in  agreement  with  the  military  authorities.  The  wages  of 
the  prisoners  shall  go  towards  inproving  their  position,  and  the 
balance  shall  be  paid  them  on  their  release,  deductions  on  account  : 
of  the  cost  of  maintenance  excepted.”  ! 

The  German  practice  of  the  employment  of  prisoners  during  the 
World  War  was  alleged  to  be  inconsistent  with  the  rules  of  the 
Hague  Convention.  It  had  been  estimated  that  at  least  eighty  per  ^ 
cent  of  all  the  prisoners  of  war  held  by  Germany  were  employed 
in  nearly  all  agricultural,  manufactural , mining  and  other  indust- 
ries of  Germany,  The  prisoners  worked  on  so  extensive  a scale  that 
it  is  not  an  exaggeration  to  say  that  German  industry  during  the 
war  was  run  mainly  by  the  prison  labor.  Compulsory  labor  was  en- 
forced and  those  who  refused  to  work  were  punished  by  isolation 
and  deprivation  of  privileges.  The  prisoners  complained  that  they 
were  compelled  to  rise  in  early  hours  and  travel  a long  distance  to 
the  working  camps.  ”There  were  also  many  complaints  that  the  hours 
of  labor  were  long,  sometimes  as  many  as  twelve  and  even  fifteen 
hours;  that  prisoners  were  required  to  work  on  Sundays  and  holiday^; 
that  the  tasks  were  unsuited  to  many  of  them;  that  large  numbers 
were  set  to  draining  swamps  in  llorthern  Germany,  where  they  were 
exposed  to  the  rigors  of  winter  weather,  and  where  they  were  com- 
pelled to  work  in  the  water  up  to  their  knees,  that  they  were  some- 
times required  to  work  in  cement  factories,  nitrate  plants,  and 

17 

even  amunition  plants,  and  the  like.” 

The  forcing  of  some  one  thousand  five  hundred  French  prison- 
ers to  work  in  the  Krupp  Cannon  factory  was  one  among  the  more 


17 

Garner,  International  Law  and  the  World  War,  Volume  II,  43 


r 


5$ 

serious  charges.  The  request  to  send  a representative  of  the  Red 
Cross  society  to  make  an  investigation  of  the  charges  was  refused 
’oy  the  German  authorities  under  the  reason  that  plants  of  a milit- 
ary character  were  closed  to  visitors. 

As  early  as-  August  1916,  the  charge  was  made  hy  the  British 
and  French  governments  that  Germany  was  employing  its  prisoners  at  | 
forced  labor  close  behind  the  firing  line  intending  to  expose  them  , 
to  the  fire  of  the  guns  of  their  own  soldiers  and  allies.  Germany  ■ 
did  not  deny  such  conduct  but  she  pleaded  the  excuse  of  retaliation 
for  similar  conduct  pursued  by  the  British  and  French  authorities. 
The  latter  emphatically  denied  the  German  charge  regarding  the  em- 
ployment of  German  prisoners  behind  the  firing  line.  In  April  1917 
the  German  and  the  British  governments  C3,tne  to  an  agreement  under 
Which  each  promised  not  to  employ  respective  prisoners  within 
thirty  kilometers  of  the  firing  line.  This  agreement  was  not  ob- 
served by  Germany.  A British  government  committee  under  the  cha,ir- 
manship  of  Mr.  Justice  Younger  in  March  1918,  reported  that  the 
Germans  had  continued  to  employ  British  prisoners  within  the  range 
of  the  artillery  dispite  of  the  agreement;  that  the  work  assigned 
to  the  prisoners  were  forbidden  by  the  laws  of  war;  that  the  hours 
were  too  long  and  tasks  too  excessive;  that  prisoners  were  mal- 
treated and  half-starved;  and  that  the  refusal  of  the  Germans  to 
permit  neutral  inspections  of  prisoners  in  occupied  territory  made 
it  difficult  to  obtain  information  concerning  these  matters. 

The  Germans  also  under-paid  for  the  prison  labor.  The  com- 
pensation for  farming  was  from  sixteen  to  thirty  pfennigs  (3  to  5 
cents)  per  day,  in  techenical  industries  75  to  100  pfennigs.  Skill- 
ed labor  seldon  received  as  much  as  3 or  3 marks  per  day,  French 


■ • V p-'r7  . ■'  ...  « ■ ’1 

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5^ 

prisoners  received  only  30  pfennigs  per  day  for  draining  marshes, 

90  pfennigs  for  work  in  mines,  and  as  much  as  2 marks  for  labor  in 
munition  establishments. 

The  punishment  and  discipline  of  prisoners  in  Germany  were 
severe.  The  offender,  after  being  caught  was  put  in  solitary  con- 
finement for  a certain  period.  Sometimes  a prisoner  might  be  tied 
to  a post  with  his  hands  behind  him,  where  he  was  forced  to  stand 
for  some  period  in  the  heat  of  the  sun  or  in  cold.  ”Sometime8  he 
Was  suspended  with  his  feet  dangling  above  the  ground;  sometimes 
he  Was  compelled  to  stand  for  hours  bearing  a heavy  load  or  walk 
to  and  fro  with  a heavy  sack  of  bricks  on  his  back.  At  Ruheleben 
offenders  against  the  regulations  were  confined  in  small,  ill- 
lighted  cells  for  periods  ranging  from  twenty-four  to  seventy-two 
hours.  Their  ration  was  war  bread  and  cold  water.  Prisoners  who 
suceeded  in  escaping,  but  who  were  subsequently  retaken  before 
reaching  the  frontier,  were  placed  in  solitary  confinement  until 
the  end  of  the  war.” 

Besides,  there  were  charges  of  brutality  and  cruelty  in  some 
of  the  German  camps.  The  striking,  beating  and  rough  handling  of 
prisoners  by  the  German  officers  in  some  cases  were  complained  by 
the  Allies,  The  American  Embassy  had  also  protested  against  the 
employment  of  vicious  dogs  in  Wittenberg  and  other  camps.  The 
British  and  French  made  a number  of  charges  that  an  Irish  prisoner 
Was  shot  by  the  guard  at  Limburg,  that  eight  prisoners  were  burned 
to  death,  that  some  prisoners  were  thrusted  with  bayonets  and  some- 
timed  seriously  injured  for  trival  offences  and  that  punishments  | 
were  generally  inflicted  without  a just  trial. 

These  would  justify  the  English  in  the  making  of  reprisals 


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if  the  English  Parliament  had  so  demanded.  Lord  Newton  said  that 
”in  a competition  of  brutality,  we  should  be  outdistanced  immediate-l 
ly."  But  in  spite  of  the  decision  of  the  Parliament  there  was  f rom j 
time  to  time  a wide  spread  popular  demand  in  England  for  the  adopt- 
ion of  measures  of  reprisals. 

In  the  summer  of  1915  the  German  government  threatened  to 
maJs.e  a reprisal  against  Canadian  prisoners  because  of  the  bad  treat-j 
ment  of  German  civilian  prisoners  in  the  internment  camps  at  Amhers-^ 
Nova  Scotia.  This  charge,  however,  was  groundless.  The  transfer 
of  a large  number  of  French  prisoners  to  North  Germany  to  work  in 
draining  marshes  and  swamps  was  held  as  measure  of  reprisals  for  th ; 
alleged  brutal  treatment  of  German  Military  and  civilian  prisioners 
in  Africa. 

In  May  and  June  1916,  some  thirty  thousand  French  upper  class 
prisoners  were  transferred  to  the  Baltic  and  Polish  provinces  of 
Russia  where  they  were  set  to  hard  work  in  the  building  of  rail- 
roads. Rations  were  greatly  reduced,  and  they  were  deprived  of 
many  privileges.  The  pretext  taken  by  Germany  for  the  measure  was 
the  internment  and  mal-treatment  of  German  civilians  in  Morocco.. 
Some  British  prisoners  also  were  transferred  to  the  German  occupied 
regions-  of  Russia  where  thej?  were  required  to  undertake  hard  work. 
This  was  done  in  consequence  of  the  action  of  the  British  govern- 
ment in  sending  an  equal  number  of  German  prisoners  from  the  intern- 
ment camps  in  England  to  work  at  unloading  ships  at  French  ports. 

In  the  autumn  of  1916  Germany,  by  way  of  reprisals,  seized 
some  two  hundred  Frenchmen  and  women  in  the  occupied  region  of 
France  and  transferred  them  to  Germany  in  consequence  of  the  alleg- 
ed failure  of  French  government  to  fulfil  the  terms  of  an  agreement 


II  " ■ f 7 : ;. 


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concerning  the  release  of  civilian  prisoners. 

Neither  the  British  nor  the  French  government  resorted  to  the 
practice  of  reprisals  although  threats  were  occasionally  made  and 
in  some  cases  regulations  concerning  the  privileges  of  prisoners 
were  so  readjusted  as  to  bring  them  into  conformity  with  those  of 
Germany . 

(2)  Reprisals  Against  Non-Combatants.  - When  the  delinquent, 
state  refused  reparation  for  the  wrong  committed,  the  injured  state 
can  exercise  such  means  as  are  necessary  to  obtain  redress.  In 
case  of  international  delinquencies  committed  in  time  of  peace  such 
means  are  reprisals  which  include  embargo,  pacific  blockade,  and 
War  When  it  is  inevitable.  On  the  other  hand,  in  case  of  interna- 
tional delinquencies  committed  in  time  of  war  through  the  violation 

of  laws  of  Warfare  on  the  part  of  a belligerent,  such  means  are 

!8 

reprisals  and  the  taking  of  hostages. 

A person  seized  by  way  of  reprisals  has  the  right  to  be  treat- 
ed as  a hostage  whose  life  is  sacred.  He  is  not  imprisoned  for 

crime  and  his  civil  rights  are  unaffected.  His  will  is  valid  al- 

19 

though  the  testator  might  be  a prisoner  of  war.  ”Host.ages,”  says 
W.E.  Hall,  “are  often  seized  in  order  to  ensure  prompt  payment  of 
contributions  and  compliance  with  requisitions,  or  as  a collateral 
security  when  a vessel  is  released  on  a ransom  bill;  more  rarely 
they  are  used  to  guard  against  molestration  in  a retreat  and  for 
other  like  purposes.”  It  is  forbidden  by  an  established  usage  to 
take  their  lives  unless  they  are  attempting  to  escape.  They  must 

18 

Oppenheim,  International  Law.  Volume  I.  250 
13  ~ 

Taylor,  International  Public  Law,  530 


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57 

be  treated  as  prisoners  of  war  except  that  escape  may  be  prevented 

20 

by  closer  confinement. 

During  the  American  Civil  War,  the  Confederates  seized  a num- 
ber of  unoffending  citizens  of  Maryland  and  Pennsylvania  and  kept 
them  in  the  South  until  the  end  of  the  war;  their  intention  being 
to  hold  them  as  security  against  the  arrestment  or  ill-treatment  by 
the  Union  government  of  the  "Copperheads”  who  were  resident  in  the 
North  and  were  said  to  be  in  sympathy  with  the  South.  Again  during 
Franc o-Crerman  War,  the  Germa.n  authority  ordered  the  seizure  of 
forty  notable  inhabitants  of  Di;jou,  Cray  and  Vesoul,  in  retaliation 
for  the  decision  of  the  French  government  to  treat  the  crews  of  i 
German  merchant  vessels  as  prisoners  of  war.  During  the  Boers  War, 
this  practice  was  revived  by  Great  Britain.  When  the  Boers  appro- 
ached Aliwal  North  in  November  1699,  before  crossing  the  Orange 
River,  they  seized  the  British  magistrate  Mr.  Hugo  and  ordered  him 
to  stand  on  the  middle  of  the  bridge  with  his  assistants  and  chief 

constable  while  the  army  crossed.  This  is  a "prophylactic  repriseil' 

21 

against  the  British  .measure  of  mining  the  bridge. 

As  to  the  usage  of  exposing  civilian  hostages  to  danger  by 
way  of  preventive  retaliation,  opinions  of  writers  are  divided. 
"Their  proceedings"  says  Professor  Pil'Jet  referring  to  the  German 
practice  in  the  Franco- Prussian  War,  "resemble  that  of  the  mutineers 
who  place  women  and  children  in  the  first  rank,  hoping  that  the 
troops  will  not  dare  to  fire  upon  them.  Fighting  ought  to  be  con- 
fined to  soldiers,  and  there  is  little  military  virtue  in  making 

20 

Hall,  International  Law . 7th  Edition,  439 
21 

Spaight,  War  Right  on  Land.  465-466 


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5S 

use  of  non-coBi'batants  as  a shield  against  the  enterprise  of  the 
enemy.”  ”It  would  not  he  more  unjust,”  says  Professor  Westlake, 

”if  civilians  of  the  enemy  state  were  placed  in  the  front  of  battle  ■ 
in  order  to  induce  the  enemy's  troops  to  withhold  their  fire."  On 
the  other  hand,  the  German  Official  Manual  admits  that  the  method 
used  to  prevent  train-wrecking  in  18?0-7i  was  a cruel  one,  but 
justifies  it  on  the  ground  that  the  plan  was  completely  successful, 
no  accident  occuring  to  trains  while  e.ll  previous  measures  adopted 
to  stop  the  irregular  conduct  of  a fanatical  population  appeared  to 
be  a total  failure.  Both  the  views  of  Professors  Westlake  and 
Fillet’s  on  the  one  side  and  that  of  the  German  Official  jurists' 
on  the  other  are  too  absolute,  genereJ,  and  dogmatic;  both  ignore 
the  varying  circumstances  in  which  the  practice  in  question  may  be 
resorted  to.  Mr,  Spaight  remarks  that  the  circumstances  of  the 
case  must  be  carefully  studied  before  such  preventive  reprisals  can 
be  condemned.  "If  reprisals,"  he  maintains,  "are  legitimate  at  all 
and  if  they  may  be  inflicted  upon  a civil  population,  then  to  retal- 
iate as  far  as  possible  in  kind  is  proper  and  equitable.  But  repri- 
sals can  only  be  inflicted  for  a violation  of  the  laws  of  war. 

They  must  not  be  inflicted  to  prevent  the  enemy  from  carrying  out 

23 

a proper  act  of  hostilities." 

"The  principle  of  humanity  condemns  all  instruments  and 
methods  of  warfare  that  involve  gratuitous  cruelty,  sava.gery  or 
treachery;  it  reprobates,  therefore,  the  ill-treatment  of  the  help- 
less and  the  disarmed  including  the  wounded  and  prisoners , the  aged 

23 

and  feeble,  women  and  children.  But  w^e  are  sorrj^  to  say  that  with 
22 

^Spaight,  War  Ri ght  on  Land.  468-469 
<b3 

Colman  Phillipson,  Wheat  on ' s International  Law . 470 


respect  to  the  treatment  of  n on- combat ant s , the  practice  of  nations 

always  overrides  the  principle  of  humanity.  Every  war  has  seen 

reprisals  e.gainst  citizens,  either  consisting  in  the  destruction  of 

their  property,  the  exaction  of  fines,  or  the  seizure  of  their 
24 

persons . 

During  the  World  War,  the  Germans  adopted  extremely  rigorous 

and  barbarous  measures  against  the  non-comba.tants  in  the  occupied 

regions  of  Belgium  and  France,  When  they  were  charged,  they  allege: 

25 

that  the  civilians  of  the  region  participated  in  fighting,  A Germ- 
an army  doctor  wrote  an  article  in  Colcgue  Gazette  which  said, 
"Belgium  civilians  shoot  out  of  every  house,  from  behind  every 
thick  bush,  with  blind  hatred,  upon  everything  that  is  German.  In 
the  very  first  days  of  the  campaign,  we  lost  a number  of  dead  and 
wounded  throuph  the  civilians." 

In  reply  to  such  allegations,  the  Belgium  government  had  re- 
peatedly denied  that  its  civilians  had  te.ken  part  in  the  hostility  ’ 
ies.  From  the  beginning  of  war  between  Germany  and  Belgium,  the 
latter  had  issued  instructions  every  day  in  each  town  warning  the 
civilians  not  to  resist  the  invaders.  No  doubt  there  were  here  and 
there  some  individuals  who  did  take  up  arms  and  participate  in 
fighting.  But  illicit  hostilities  by  non-combatants  could  be  reme- 
died according  to  the  provisions  in  the  law  of  war.  It  was  illegal 
to  inflict  collective  penalties  for  the  acts  of  individuals. 

In  spite  of  Belgian  protest  the  Germans  did  not  stop  their 
measures  of  savage  and  unrestrained  reprisals. 

August  10,  11,  12:  An  old  man  of  Neerhespen  had  his  arms 

24 

Spaight,  War  Ri p.ht  on  Land.  465 

25 

Colman  Phillipson,  International  Law  and  the  Gre s.t  War . 181-192 


60 


sliced  in  three  longitudinal  cuts,  being  hanged  head  downward  and 
burned  alive.  In  Orsmael,  young  girls  were  violated,  children  out- 
ranged and  inhabitants  killed. 

August  10,  Linsmeau:  “German  cavalry  occupying  the  village 

of  Linsmeau  were  attacked  by  some  Belgium  infantry  and  two  gen- 
armes.  A German  officer  was  killed  by  our  troops  during  the  fight, 
and  subsequently  buried  at  the  request  of  the  Belgium  officer  in 
conjmand.  None  of  the  civilian  population  took  part  in  the  fighting 
at  Linsmeau.  Nevertheless,  the  village  W8.3  invaded  at  dusk,  August 
10,  by  a strong  force  of  German  cavalry,  artillery  and  machine  guns. 
In  spite  of  formal  assurance  given  by  the  Burgo-master  that  none  of 
the  peass.nts  had  taken  part  in  the  previous  fighting,  two  farms  and 
six  outlying  houses  were  destroyed  by  gun-fire.  All  the  male  popu- 
lation were  then  compelled  to  come  forward  and  hand  over  whatever 
arms  they  possessed.  No  recently  discharged  firearms  were  found. 
Nevertheless,  the  invaders  divided  these  peasants  in  three  groups. 
Those  in  one  group  were  bound  and  eleven  of  them  placed  in  a ditch, 
where  they  were  afterwards  found  dead,  their  skulls  fractured  by 
the  butts  of  German  rifles." 

August  18,  Schaffen:  Many  villagers  were  massacred.  A woman 

and  a daughter  were  shot  and  thrown  into  a sewer.  Some  were  hanged 
on  a tree  and  burned  alive;  some  were  buried  alive. 

August  19,  Corbeck-Loo:  A woman,  S3  years  old,  whose  husband 

was  in  the  army  was  surprised  by  the  sudden  appee.rance  of  a band 
of  German  soldiers.  Several  of  her  relatives  were  locked  in  an 
abandoned  house,  while  she  was  brought  to  another  house  where  she 
was  violated  successively  by  five  soldiers.  In  the  same  village, 
August  SO,  German  soldiers  searched  a house  where  they  found  a 




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young  girl  of  16  living  with  her  parents.  Some  kept  her  parents 
off;  others  took  the  girl  to  an  abandoned  house  where  she  was 
compelled  to  drink.  Afterwaxds  they  carried  her  out  on  the  lawn 
and  violated  her  successively.  When  she  continued  to  resist,  they 
pierced  her  breasts  with  their  bayonets. 

August  19-36,  Louvain:  A fugitive  treasurer  of  the  city  gave 

the  following  account,  "The  cavalry  charged  through  the  streets 
sabring  fugitives,  while  the  infantry  posted  on  the  footpaths,  had 
their  fingers  on  the  triggers  of  their  guns  waiting  for  the  unfor- 
tunate people  to  rush  from  the  houses  or  appear  at  the  windows,  the 
soldiers  pradsing  and  complimenting  each  other  on  their  marksman- 
ship as  they  fire  at  the  unhappy  fugitives.  Those  whose  houses 
were  not  yet  destroyed  were  ordered  to  quit  and  follow  the  soldiers 
to  the  railway  station.  There  the  men  were  separated  from  mothers, 
wives  and  children,  and  thrown,  some  bound,  into  trains  leaving  in 

the  direction  of  Germany The  population  had  to  quit  at  a 

moment's  notice  before  the  final  destruction;  then,  to  complete 
their  devastation,  the  German  hordes  fell  back  on  the  surrounding 
villages  to  burn  them.  They  t ranked  down  the  men  - some  were  shot, 
some  mads  prisoners  - and  during  many  long  hours  they  tortured  the 
helpless  women  and  children." 

The  treatment  of  non-cambatants  of  French  tovms  and  villages 
was  as  bad  as  the  treatment  of  the  Belgiums. 

August  36,  Villers-en-Fagne : A signal  front  the  church  tower 

had  warned  the  French  inhabitants  of  the  arrival  of  German  army. 
Some  of  the  French  discharged  their  guns  and  killed  a few  German 
soldiers.  So  in  the  evening,  the  Germans  burned  the  village  and 
shot  the  priest  and  some  of  the  inhabitants.  The  beautiful  village 


* ■ '^  *■  ' T M 1 ' ' V i*^'  ' ' ' ^ 

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K-t^f  V'J  ;:  *'«-'»*«1P' '-.'V^SwtA  ' 

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6^ 

of  Gue  d'Ossus  was  also  set  on  fire  without  cause.  At  Leppe  appar- 
ently two  hundred  men  were  shot  without  regard  whether  they  were 
guilty  or  innocent, 

September  SO,  Valenciennes:  "The  mayor  was  ordered  to  draw 

up  a list  of  the  names  and  addresses  of  all  the  male  inhabitants 
between  the  ages  of  10  and  45  who  still  remained  in  the  town.  In 
the  night  many  of  these  escaped  to  Lille.  Uhlan  patrols  visited 
the  surrounding  villages,  and  searched  every  house  for  civilians  of 
military  age.  In  some  cases,  they  thrust  their  bayonets  through  thij 
mattresses  on  the  beds.  It  was  reported  that  they  succeeded  in 
capturing  five  hundred  or  six  hundred  men,  who  were  taken  away  to 
an  unknown  destination." 

September  S2,  Combes:  All  the  inhabitants  of  Combes  were 

arrested  on  September  22,  and  exposed  on  a hill  to  the  fire  of 
French  artillery  and  infantry.  By  waving  their  handkerchiefs,  they 
were  soon  recognized,  but  subjected  to  the  same  kind  of  treatment 
on  the  following  day.  Then  they  were  shut  up  in  the  church  for 
five  days  where  they  swallowed  uneatable  food.  Finally  the  men 
were  separa.ted  and  transferred  to  Germany  while  the  women  and  child' 
ren  were  kept  in  the  village  church  for  one  month.  They  slept  on 
benches  and  were  not  allowed  to  move  more  than  a few  yards  from  the 
door.  The  unsanitary  condition  made  the  place  horrible.  Dysentery 
and  croup  spree.d  am^ong  them. 

The  cases  given  above  are  sufficient  to  indicate  the  cruelty 
of  the  Germans.  The  justification  of  them  depends  upon  whether  or 
not  the  measures  were  adopted,  by  way  of  reprisals.  If  the  inhabit- 
ants in  the  occupied  region  were  innocent  non-combatants,  every 
effort  should  be  made  to  treat  them  as  fair  as  possible.  But  means 


'*i  ' vVif  ’ ' ■'  ■ . >?  ' *^  ; ' I *,j  iW 

;t/4, 1.^544'  . ^1  *' 

, * ' I ■•  ' ' '*  ' -.  ,r  ■ ' , ' v ■ ; . ' ■’ .*  ‘'"  ,'7.-^  ,. :Jt 

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63 


of  retaliation  may  be  taken  whenever  the  civilian  population  at- 
tempted to  attack  the  troops  of  the  invaders.  Even  then,  we  must 
bear  in  mind  that  the  act  of  reprisals  oug.ht  to  be  proportional  to 
the  acts  condemned. 

(3)  Reprisals  Against  Bombardment  of  Towns.  - The  bomba.rdment 

of  towns  in  order  to  put  an  indirect  pressure  on  the  commandant  to 

induce  him  to  surrender  for  the  sake  of  the  suffering  inhabitants 

is  a measure  of  peculiar  cruelty.  And  it  is,  as  Professor  Hall 

26 

observes,  not  only  unnecessary,  but  often  unsuccessful.  It  sur- 
vived from  the  practices  which  were  formally  permitted  and  which 
lasted  until  the  beginning  of  the  present  century.  It  was  ls.rgely 
used  during  Franco-Prussian  War  of  1670,  but  cannot  be  excused. 

In  1696,  the  Institute  of  International  Law  at  its  meeting- 
in  Venice  condemned  the  bombardment  of  open  towns  by  a nava2  force 
for  the  purpose  of  securing  ransom  or  of  merely  bringing  a pressuae 
to  bear  upon  a belligerent.  But,  however,  it  sanctioned  the  prac- 
tice 'aux  fins  d'obtenir  par  voie  de  requisitions  ou  de  contribu- 

27 

tions  ce  qui  est  necessaire  pour  la  flotte'.  ' 

At  the  Hague  Conference,  an  attempt  was  made  to  keep  the 
practice  of  bombardment  within  a narrow  limit  so  as  to  be  in  con- 
formity with  the  accepted  modern  usage.  In  the  first  place,  the 
bomba.rdment  by  any  means  whatsoever  of  undefended  towns,  villages 
and  buildings  was  entirely  prohibited.  In  case  of  bombardment 
which  does  not  formi  a part  of  a general  assualt,  the  leading 
officer  of  the  besiegers  is  required  to  notify  the  authorities  of 

26  ^ " 

Hall,  International  La.w . (sth  Edition).  532 

27 

Kail,  International  Law,  (6th  Edition),  531 


S'  s^lSk^in.  *j«.SJ 


■\r.  .’i  •■  •'?•'  ., 

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the  town  indicating  his  intention.  During  the  bomhardnient , all 
possible  steps  must  be  taken  to  spare  churches,  buildings  set 
apart  for  objects  of  charity,  art  and  sciences  and  historicaJ  monu- 
ments. Hospitals  or  places  provided  for  the  wounded,  not  used  for 

28 

military  purposes,  designated  with  marks  visible  to  the  besiegers 

and  communica.ted  to  them  before-hand  should  also  be  spared.  These 

regulations,  however,  unlike  those  proposed  by  the  Institute  of 

International  Law,  refer  only  to  land  warfare  and  do  not  take  up 

the  question  of  bombardment  from  the  sea. 

Nevertheless,  we  may  lay  down  as  a rule,  that  the  bombardment 

of  an  undefended  town  or  village  for  the  purpose  of  destroying  a 

39 

few  soldiers  who  were  happened  to  stay  there  is  unjustifiable. 

During  the  World  War  the  Germans  were  charged  with  bombard- 
ment in  October  1914,  of  the  undefended  towns  of  Belgrade,  Chabatz 

30 

and  Losuitza  in  Servia.  The  reason  given  for  the  bombardn.ent  of 
Belgrade  was  that  it  contained  an  ancient  Turkish  fortress.  But 
the  fortress,  as  Professor  Reiss  of  the  University  of  Laussanne 
observed,  was  nothing  but  a historical  monument.  As  the  result  of; 
the  bombardment,  sixty  public  buildings  and  640  priva.te  houses 
Were  badly  dama.ged  or  destroyed.  Even  the  University,  the  nationa! 
museum,  the  old  roj'-al  palace,  the  stc;te  tobacco  manufactury,  and 
the  Russian  and  British  Legations  were  not  spared.  Twenty-five 
civilians  were  killed  and  126  wounded.  In  Chabatz,  an  "Open  town 
of  no  strategic  importance,"  the  houses  damaged  or  destroyed 

26  IT915,  107 

Garner,  International  Law  in  the  European  War, Arne r.  J.  of  Int.  L. 

Phillipson,  International  Law  and  the  Great  War,  132 
30 

Garner,  International  Law  and  the  World  War,  Volume  I,  416-419 


SS' 

aciountsd  to  486 

There  were,  of  course,  no  few  count er-ch3.rges  against  the 
Entente  Allies  in  respect  to  unlawful  'bombardment.  The  Russians 
treacherously  bombarded  the  undefended  town  of  Numel . The  Ru.3si;an3 
after  havingbeen  accused  by  the  Germans,  pleaded  as  an  excuse  for 
the  action  that  the  civilian  population  of  the  town  had  taken  part 
in  fighting  that  compelled  them  to  adopt  exceptional  measures.  The 
British  and  French  were  also  charged  with  bombarding  Gallipoli,  in 
April  1915,  In  the  bombardment,  numerous  women  and  children  were 
killed,  although  the  town  could  not  be  regarded  as  fortified  or  as  , 
a place  of  military  importance.  “They  were  likewise  charged  with 
bombarding  the  ’open’  towns  of  Dar~es-3alaam,  Victoria,  and  Swak- 
opmund  in  German  Southwest  Africa.” 

Some  bombardments,  of  course,  were  carried  out  by  reason  of 
reprisals.  Each  belligerent,  in  order  to  save  its  own  towns  from 
being  repeatedly  bombarded,  would  think  of  a means  to  bring  these 
vigorous  acts  to  a stop.  The  best  means  were  reprisals. 

(4)  Reprisals  Against  the  Confiscation  of  Private  Property.  *• 
In  time  of  war  some  private  property  may  be  captured  and  confiscat- 
ed. The  imoortant  laws  in  reerard  to  learal  capture  and  confiscation 
by  naval  force  are  as  follows. 

1.  ”The  private  property  of  every  citizen  unless  such  proper- 
ty is  protected  by  the  Declaration  of  Paris; 

2.  "Contraband  of  war; 

3.  ’’Property  engaged  in  the  violation  of  a blockade; 

4.  ’’Property  engaged  in  certain  acts  of  unneutral  service; 

5.  ’’All  property  found  on  board  a ship  of  war  or  a public 
auxilliary  vessel,  save  when  exempted  from  capture  by  the  terms  of 


• -*>  - ••*  *V  * \ " ■ ■i‘‘^ 

■ -S  /^^/'•  'v::,.,(’'*  .^i-ijiV  'i?*  .‘■9A^^ 

’ =>'  , ;:,•  f *.  vf^ *«iAjSj  2:^*^  -'  ■ 

I-Iwil  tJiVlT*  lo.  ii£)4‘--  •■i,!'.tk»n  !L«<  .''i,  ft  i,,‘fciA‘r,,r.<... 'iii' / .^’_li^»^?■ 


’.“I": 


^CK, . 


►%k-‘^v*l_  0o.v^;*5  ^ 


Geneva  convention  of  1916  or  the  Haa:ue  convention  of  1907.” 


Besides  these  there  are  two  other  rules  dealine;  with  contract 


31 


in  time  of  war. 


6.  ”As  cjoods  belonged  to  the  alien  enemy  trade  is  confiscable 
it  follows  that  any  contract  made  upon  such  trading  is  illegal  and 


invalid  and  that  it  will  not  be  enforced  by  the  courts  either  durin: 
or  after  the  war. 

7,  ”A11  contracts  made  between  people  in  the  belligerent  i 


countries  are  void.” 

Nevertheless,  private  debts  ought  to  be  distinguished  from 
private  property.  The  English  contends  that  private  debt  cannot 


be  confiscated  though  private  property  can  be.  Thus  "when  France 
seized  both  in  1793,  Great  Britain  retaliated,  and  at  last,  in 
April  1814,  compelled  the  removal  of  sequestrations  and  the  liquid- 
ation of  claims.”  In  1807  Great  Britain  confiscated  the  Danish 
prox^erty  in  British  x>crt8  to  the  amount  of  £1,335,000.  Denmark 
retaliated  by  sequestering  debts  due  from  Denmark  to  British  sub- 
jects which  was  hardly  amounted  to  £300,000.  The  validity  of  the 
Banish  sequestration  V7as  denied  by  the  British  court  that  endeavore 
to  make  a distinction  between  private  debts  and  other  property  in 
accordance  with  a decision  by  Lord  Ellenborough,  which  hs.d  received 
just  criticism.  The  only  recent  instance  of  such  confiscation  was 
furnished  by  the  act  of  the  Confederate  congress  of  August  1631, 
announcing  that  "property  of  whatever  nature,  except  public  stocks 
and  securities  held  by  an  alien  enemy  since  the  Slst  of  May,  1531, 


1-5  Geore;e  B.  Davis,  Elements  of  International  Lav;,  360 
33  ^ ■“ 

6-7  Bentwick,  War  and  Private  Property,  48 
33  ' - ^ — 

Taylor,  International  Public  Law . 433 


33 


33 


31 


.1^1  «.W  .....  j!.  • ; ■'  ’ ’ * • '*'\^ii«.  /.•.5  ■ . ':  A'; 


r 


>>*.-■  .:  I^c..  i\-r  •.  'fl  >,.»  ' ''' 


r- ; ■-  ■ .*  .„V4if #W  M iX'  e«, 


,^..r  ■ . -^1' 

f '.  ' f • •••  ^ ■ ' . *'  .!•»'.'  *'  "'  fW  '■-.*  ''  ,/T  .f  <t 

■•  ‘V:''  *'5*  ,•*  ^».  '.  .■'  .V  ■;  ^V'..  •-‘♦A  • • "'"’T^' '"  ' ■ 

' -:t>ii»it»a  . G)S6 . >'fci . 1.  "jiifei !,  ■„'  - , ..'.  .■■ 


;d  : ■"  ••"kttriahw-  ii 


shall  he  sequestered  and  appropriated,  "under  which  receivers 
would  be  appointed  and  lands  sold.  Although  the  act  was  propably 
within  the  war  power  of  the  Confederate  governinent , yet  it  did  not 
escape  condemnation  at  home  and  abroad.  The  sale  of  lands  under 
the  act  was  held  invalid  and  void.  It  Justified  the  Union  govern- 
ment in  making  reprisals  if  it  liked. 

"Modern  practice  does  not  go  beyond  sequestrating  during  the 
War  the  income  of  real  property  owned  by  private  enemies  without 
limits,  in  deference  to  the  principle  that  after  encouraging  per- 
sons to  buy  land  it  is  not  honorable  to  take  advantage  of  war  to 
dex>rive  them  of  it," 

But,  it  is  an  established  rule  that  shares  and  stocks  owned 
by  enemy  aliens  are  not  confiscable  though  the  payment  of  dividends 
may  be  suspended. 

'^5;  Aerial  Attacks  as  Acts  or  Reprisals.  - At  the  beginning 

of  the  World  War  the  British  and  French  aviators  declared  that 

they  confined  their  attacks  to  fortified  or  defended  towns  within 

the  enemy's  lines.  But  when  the  Germans  directed  violence  from 

air-ships  against,  undefended  cities  and  towns  destroying  the  lives 

of  a large  number  of  civilians  including  many  women  and  children, 

the  Allies,  after  a period  of  hesitation,  launched,  in  retaliation, 

35 

similar  attacks  against  German  cities.  Stuttgart,  Carlsruhe,  and 
Freiburg  in  Baden  were  bombed  in  the  year  1916.  The  royal  palaces 
of  the  first  two  cities  mentioned  were  both  damaged  and  many  civil- 
ians were  said  to  have  been  killed. 

34  ” 

Garner,  International  Law  and  the  World  War,  Volume  I,  4S8-494 
45 

Foulke,  International  Law , Volume  II,  SSI,  U.5 


■m  •.  Hr/: . • * 

.rsyr:  ^ 


■ '■•  7/ 


^ -dv  » ^ii 

^ .•  • -l^-  *-*Y>'.  ■ ' •■■  \f..l:f-l-  •■  ■>■•'■  •'JTi*"  ..>^W T’  ^ 


;X,v.,... 


a . ' V "v  V’  ,^-.. 

. *'  v'i^^^'V'' : >1 

'.•i  i i !'■  )■  #•'  • •4'^  .diJ 


„o'/vi(i6  x/,/,^  v:^T6 

tf-.-e:,  i viii'  Itc^VA*;  - ■■' tvi'0'4  nx;v^-  'sfiivAf'X.- 
......  . „..*  ...  .„ 


f 


\ ' ^ f t %-•! c ic X >*:f <, ; i'.  , ■■hlSJ, ^ .'^rjjji’l 


*.  y '<’'»*.  '■ 

y*'.  ii.;.*v-*^vf\r« 


63 

In  April  14,  1917,  *’a  large  squadron  of  British  and  French 
aeroplanes  again  raided  the  town  of  Freiburg  as  an  act  of  reprisal 
in  consequence  of  the  attacks  of  German  submarines  on  British 
hospital  ships  in  violation  of  the  tenth  Hague  convention." 

The  multiplication  of  German  raids  upon  undefended  English 
and  French  towns  stimulated  a.  strong  popular  demand  in  the  Allied 
countries  for  retalia.tion.  On  September  30,  French  aviators  threw 
a large  quantity  of  projectiles  upon  the  city  of  Stuttgart  as  a 
reprisal  for  the  German  borabardment  of  the  undefended  town  of  Bar- 
le-Due . On  the  same  day  raany  German  military  bases  and  railway 
stations  were  damaged. 

In  October  1917,  French  aviators,  in  retaliation  against  the 
German  bombardmient  of  Dunkirk,  bombarded  the  German  town  of  Mulheim 
the  aviation  grounds  at  Behlestadt,  munitions  depots  at  Ruffach, 
the  railway  station  at  Thionville,  and  the  town  of  Offenburg  in 
Baden.  In  the  meantime  it  was  reported  in  London  that  the  British 
Cabinet  had  adopted  a general  policy  of  reprisals,  but  no  official 
announcement  of  such  policy  was  made.  Nevertheless,  in  December  1, 
1917,  bombardment  of  German  towns  as  a reprisal  for  some  particular 
acts  of  the  Germans  became  so  frequent  that  the  world  was  led  to 
believe  that  the  British  policy  of  air-raid  reprisals  had  actually 
been  carried  out.  The  British  government,  however,  felt  reluctant 
to  follow  the  German  practice  of  bombarding  without  discrimination 
open  and  undefended  towns  far  behind  the  milita.ry  lines  and  a large 
majority  of  the  English  people  was  opposed  to  the  policy  of  compet- 
ition with  the  Germans  in  the  barbarous  methods  of  aerial  warfare. 

For  the  purpose  of  preventing  the  Allies  from  carrying  out 
the  policy  of  reprisal  against  Germany,  the  German  authority  adopt- 


TV' 


i..'  •/'  7', 


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.V<‘4  ■• 


'f^' 

rntx  H.  ■ '■■■"  .’  ' , •■  s tiC'' T^-  . '^♦■,  't''-£'^'''*i5K'  ■'■  ■'  Vv*»  '--!j 

^ ■ ...  vr*,.  .■, 

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‘ V.  » ' 


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. t 


■'.“  ^'.7  ’-j0i^<i^  ..r4^ 

^ j •>'"i?)»  1 ■•*'»,  J r.  t L,  . .'  '/?#  At‘*. . X <IL-  '*.  ♦ k ».  . ‘-#'4r  I a 4iSi^«,..  fc— 


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i*  >i  . *i5,  . . Jx’r  V •'  ’ "■  ' 4.'?'*'.  ■ 'ir*  ••'■/iug’s' 

/.i^vvy^  rfjt(!J,na  tgiaam^.  ';^V«i&%-, 


'■'  ' V 01^' ■ > i ' s-  ' *■  >'  "*  ■' ' -.tCS-" 


ed,  in  February  1918,  the  expedient  of  putting  a large  number  of 
British  and  French  prisoners  of  war  in  Stuttgart,  Carlsruhe,  and 
other  towns  which  were  exposed  to  aerial  attack  and  notice  to  this 
effect  Was  given  to  the  British  and  French  government.  This  exped- 
ient, however,  yielded  no  fruit,  as  the  air  raids  upon  German  towns 
multiplied  very  fast. 

Whenever  the  Allied  policy  of  reprisals  were  carried  out,  the 
Germans  resorted  to  counter- reprisals  and  their  last  attack  on 
Paris  was  defended  as  a reprisal  for  the  continual  bombing  of  Ger- 
man towns  by  the  Allies.  The  "continued  bombing  of  German  towns," 
on  the  other  side  was  defended  by  the  Allies  as  reprisals  against 
the  "long- continued  raids  upon  English  and  French  towns  which  had 
begun  in  the  early  months  of  the  war." 

Different  opinions  have  been  expressed  regarding  the  exped- 
iency and  morality  of  reprisals.  Most  writers  of  international  law 
maintain  that  such  measures  should  be  resorted  to  not  for  the  pur- 
pose of  satisfying  vengeance  but  for  the  purpose  of  deterring  "a 
repetition  by  the  enemy  of  the  acts  against  which  it  is  directed." 
On  the  other  hand,  those  who  defend  the  policy  argue  that  it  is 
the  only  effective  means  of  compelling  the  offending  state  to 
observe  the  laws  of  war,  that  instances  of  reprisals  can  be  found 
in  abundance  in  the  history  of  every  great  war,  and  that  the  right 
of  reprisals  is  fully  sanctioned  by  practice.  "It  is,  however," 
says  Professor  Garner,  "a  measure  of  doubtful  expediency,  since  it 
often  tends  to  multiply  rather  than  dim.inish  wrongs  and  to  cause 
the  War  to  degenerate  into  barbarism.  The  result  often  injures 
the  innocent  rather  than  the  guilty,  and  this  is  especially  true 
of  aerial  reprisals  against  open  towns." 


ii  X, 


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if 


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70 

36 

(s)  Reprisals  Against  the  Use  of  Mines,  - On  August  S3,  1914, 
the  British  Press  Bureau  issued  the  following  sts^tement.  "The 
Admiralty  wish  to  draw  attention  to  their  previous  warnings  to 
neutrals  of  the  danger  of  traversing  the  North  Sea,  The  Germans 
are  continuing  their  practice  of  laying  mines  indiscriminately  upon 
the  ordinary  tra.de  routes.  These  mines  are  not  laid  in  cormection 
with  any  definite  milita.ry  scheme,  such  as  the  closing  of  military 
ports,  or  a distinct  operation  against  a fighting  fleet,  hut  appear 
to  he  scattered  on  the  chance  of  catching  individual  British  war  or 
merchant  vessels.  In  consequence  of  this  policy  neutral  ships,  no 
matter  what  their  destination,  are  exposed  to  the  gravest  dangers. 
Two  Danish  vessels,  the  Steamship  Mar  land  and  the  Steamship  Bro- 
herg,  have  within  the  last  34  hours  been  destroyed  hy  these  deadly 
engines  in  the  North  Sea  while  travelling  of  ordinary  routes  at  a 
considerable  d-istance  from  the  British  coast,,.,,.  The  A.dmiralty, 
while  reseiving  to  themselves  the  utmost  liberty  of  retaliatory 
action  against  this  new  form  of  warfare,  announces  that  they  have 
not  so  far  laid  any  mines  during  the  present  war  and  that  they  are 
endev curing  to  keep  the  sea  routes  open  for  peaceful  commerce." 

This  anncuncetrent  is  true;  for  the  German  mines  were  constant- 
ly  gathered  by  British  sweepers  from  the  North  Sea  and  the  Atlantic 
routes.  As  "floa-ting"  mines  were  forbidden  by  the  Hague  conventiori, 
the  Germans  used  what  they  called  the  Anchored,  mines.  But  since 
they  were  buried,  in  the  shifting  bottom  of  the  deep  water  they  were 
easily  torn  from  their  mooring  and  cast  adrift  so  that  they  appear- 
ed to  be  as  dangerous  as  the  floating  mines.  Alread^^  in  August 

36 

Coleman  Phillipson,  International  Law  and  the  Great  War . 376-363 


|(fv  |f  ^.li;»J ’>-^  . 'l  «B4“‘I*  Si^*o^iv  0/  5i^ 


i!}  I J.y<i2::  n«4t  f * vTOij«iS|*f^ife5)i.pV 


r 

t.: 


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M*  ep0^%s>  ;»•*«&, 

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7/ 

many  vessels  were  blown  up  either  at  a distance  from  the  north-east 
and  e^st  coa.st,  or  from  the  Tyne  break  water.  British  trawlers 
engaged  in  mine- sweeping  were  destroyed;  a ITorv^egian  steamer,  two 
trawlers,  one  belonged  to  a Danish  another  to  an  Irishman  were 
sunlc;  and  the  Pathfinder,  a British  cruiser  and  the  Wilson  liner 
Pijno  were  both  severely  struck. 

On  October  the  British  Admiraltj'’  announced  that  due  to 
this  barbarous  conduct.  Great  Britain  for  the  sake  of  self-defence 
amd  by  way  of  reprisals  was  obliged  to  the  use  of  mines  in  the 
southern  area  of  the  North  Sea.  Their  positions  were  fixed  and 
regulations  were  drawn  for  the  safety  of  neutral  vessels. 

On  October  17,  the  Rusian  government  adopted  the  similar 
measure  in  the  Baltic.  The  following'  statement  was  issued,  ”In 
view  of  the  pressure  of  German  submarines  at  the  entrance  to  the 
Gulf  of  Finland,  and  the  placing  by  the  enemy  of  bombs  and  torped- 
oes near  the  Russian  coast,  the  Imperial  government  announces  that 
the  Russian  naval  authorities  are  compelled  in  their  turn  to  have 
reeource  largely  to  similar  steps.  Consequently  navigation  in  the 
North  Zone  bounded  by  the  Russian  coast  by  parallel  56  degrees  50 
minutes  north  latitude,  and  by  the  meridian  21  degrees. east  longi- 
tude is  to  be  regarded  as  dangerous  as  the  entrance  to  the  Gulf  of 
Riga  and  the  coast  waters  of  the  Aland  Archipelago.  In  order  that 
persons  not  taking  part  in  the  hostilities  ma.y,  not  run  the  risk  of 
War,  the  entrance  and  exits  of  the  Gulf  of  Finland  and  Riga  are 
to  be  regarded  as  closed  from  the  movement  of  the  a.nn  ou  no  erne  nt . 

At  the  end  of  October,  the  Germans  had  spread  mines  indis- 
criminately in  the  open  sea  on  the  main  trade  route  from  America 
to  Liverpool  via  the  north  of  Ireland.  Many  neutrcd  vessels  and 


4: 


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pa^sangers  were  sunk.  By  the  way  of  reprisals  and  the  safety  of 
neutral  trade,  the  British  authorities  declared  the  whole  North  Sea 
a military  area. 

Two  questions  ought  to  he  answered:  first,  has  a belligerent 
a right  to  close  the  North  Sea?  Secondly,  had  the  Entente  Allies 
the  right  to  adopt  the  measure  of  reprisals  a.gainst  Germany  for  the 
using  of  mines?  In  answering  the  first  question  we  may  say  that 
although  the  high  seas  are  open  and  free  to  all  in  peace  times,  yet 
the  use  of  them  by  neutrals  in  time  of  war  is  subject  tc  many  re- 
strictions. In  suspicious  cases  the  neutral  vessels  are  liable  tc 
be  searchedin  determining'^''^hether  they  have  carried  contrabands  or 
engaged  in  other  unneutral  service.  They  are  also  lis-ble  tc  be 
captured  in  case  of  attempting  to  run  a blockade.  The  si2;e  of  the 
blockaded  area  eannot  be  clearly  fixed.  But  due  to  the  modern 
conditions  of  warfare,  the  rapidity  of  movement  and  communication, 
the  great  fire  range,  etc.,  the  area  is  likely  to  be  a very  exten- 
sive one.  It  may  be  certain  that  when  the  sea.,  irrespective  of  the 
size,  is  declared  as  a blockade  under  emergencies,  "international 
law  requires  neutral  vessels  to  keep  away  from  it  under  the  penalty 
of  capture  and  condemnation."  Again,  neutral  vessels  would  run  a 
great  risk  in  entering  into  the  vicinity  of  localities  where  the 
naval  operations  were  conducted.  It  is  their  duties  to  keep  away 
from  the  scene  of  battle.  From  this  point  of  view,  the  closing  of 
the  North  Sea  by  the  British  authority  is  justifiable. 

Then  we  come  to  the  second  question;  that  is  whether  the 
Entente  Allies  had  the  right  to  adopt  the  measure  of  reprisals 
against  Germany  for  her  using  of  mines,  Mr.  Colemsji  Phillipson  has 
expressed  his  opinion  regarding  this  question.  His  idea,  so  far  as 


y |f‘‘  • ■ ’ ••'  ’ I'y  ' ■'■:{'  ■ ■ l 1-' 

. II.  i*'  i / » ' « * ‘ \k  .\\7^  ' - *V^ 


'.v;' 


' ’'■  •^Jb''; .' '^"  . . ■’'  •‘''” . ;.  ■ w,;;  „’'j 

I > I ^ fl  f ' _.  . 1 .i  V'  1.  ' , ■ ■ , A"  ii 


■>) 


'•“  I 


rOi,- 


I If''-/  ■ >-■?■■.  • »■  '.rr','-  .'  r 

’ “<  i ■ ' /ja  iT>"|  \,  . t /..  , 

>■.:,  'C- "li >vi  ,1^  , 

?:(jO  bSl'jStj'b  •'iv'.rlMy-l-  ;•  ' ..  ..'.li.5. 1.  , •._  ,y_' 


> i.  I. 


73 

we  can  see,  is  correct.  He  says,  "Kow,  when  one  belligerent  permits 
in  lawless  and  unprincipled  proceeding,  it  would  he  sheer  madness 
on  the  part  of  the  adversary  to  adopt  a policy  of  acquiescence  or 
tacit  disapproval.  If  self-preserv3.tion  cannot  he  secured  on  the 
one  side  and  decent  conduct  enforced  on  the  other  hut  oy  retaliat- 
ory measures,  then  such  measures  are  perfectly  justifiable  a.nd  leg- 
itimate when  they  are  applied  with  no  more  rigor  than  the  exigen- 
cies of  the  occasion  demand." 

37 

(?)  Reprisals  Against  Contrabands  On- Foodstuffs . - During  the 
World  War,  it  had  been  announced  that  the  CTerma.n  government  was 
going  to  take  over  on  February  1,  1915  the  grsiin  and  flour  imported 
into  the  country.  Now  foodstuffs,  having  been  in  the  list  of  cond- 
itional contraband,  were  liable  to  seizure  if  evidence  could  be 
praduced  to  show  that  they  were  destined  for  the  use  of  the  army 
and  navy  or  of  the  government  department  of  the  enemy  sts.te . If 
the  Declaration  of  London  on  the  point  had  the  binding  force,  then 
all  corn  and  flour  imported  into  Germany  after  February  1 were 
liable  to  seizure  and  condemnation.  Even  though  the  Declaration 
of  London  should  fail  in  binding  the  belligerents  in  the  case,  the 
long-established  principle  of  international  law  might  apply.  In 
1793  the  United  States  maintained  that  provisions  might  be  declared 
contraband,  if  there  was  reasonable  expectation  to  reduce  the  figh^ 
ing  force  of  the  enemy  by  virtue  of  famine.  During  Russo-Japanese 
War,  Russia  declared  all  foodstuffs  to  be  absolute  contraband. 

The  United.  States  protested  by  reason  that  the  warlike  nature,  use 
and  destination  were  the  only  proper  tests  of  contraband  character 

37 

Phillipscn,  International  Law  and  the  Ore  at  War , 345-347 


Ct*  X>iT  i £.f/.,  ' 

;V,  ' l,;V,^’.i»^(^^ 

•?«  0ii'-‘"  ^ e/' ii;-,i;4  (T>llpi/.'  .- 

'\^t:  v' 


7f- 

of  goods.  Consequently  Russia  enforced  new  regulations  but  still 
held  that  provisions  consigned  to  the  enemy  government  were  goods 
of  contraband.  ; 

Turning  back  to  the  case  mentioned,  it  was  found  that  the 
taking  over  of  food  supplies  by  the  German  government  in  1915,  was 
not  for  the  purpose  of  feeding  the  civilian  population.  Their  main 
desire  was  to  supply  the  need  of  the  army.  Now,  as  we  know  that 
use  is  one  of  the  proper  tests  of  contre.band  character  of  goods,  we 
naturally  inquire  whether  the  grain  and  flour  were  indespensable  : 
for  the  Germans  for  carrying:  out  the  war.  "Food  is  just  as  essent- 
ial for  the  forces  as  bullets  are  for  their  guns,  and  therefore 
is  equally  seizeable  if  encountered  to  transit  to  them,"  Further- 
more, so  far  as  the  commodities  were  consigned  to  and  under  the 
exclusive  control  of  the  government  we  can  naturally  conclude  that 
they  were  destined  for  the  government’s  soldiers.  The  question 
whether  such  use  is  exclusive  or  not  would  not  be  rega,rded.  If  the 
provisions  would  also  be  used  to  feed  the  civilian  popula-tion,  then 
the  responsibility  for  the  seizure  or  the  deprivation  suffered  by 
the  non- camba.t ante  will  be  placed  upon  their  own  government  for 
taking  over  such  comir.odities , for  it  is  impossible  for  the  adver- 
sary to  draw  a clear  line  of  demarcation  between  that  which  would 
be  for  the  use  of  the  force  or  that  which  might  be  set  apart  for 
the  civilian  population.  Thus  the  conclusion  ma,y  be  reached  that 
the  grain  and  flour, _ under  such  circumstances  were  liable  to  seiz- 
ure and  condemnation. 

Accordingly  the  British  government  decided  that  the  Wilhei ming 
bound  for  Hamburg  with  a cargo  of  foodstuffs  from  the  United  States 
should  be  seized  and  her  cargo  condemned  as  contraband. 


...  /^T]  •(■•^jp^.^Ty/’wir^ 

I V'  fsilsiL 


jpi-- 


’ * •'  i 


F»‘  W ,«'■.,  ■'♦?'  ^ . ’ • -^1-  WIVT^mWMM  . 'It  ' ■ il  ' > H ■'■  * 

, j(  '•'sbf\ - ' -■  • 'M'  ' .'''•  .it  M'”! 

' ^ , *>•■[■'/..'  ' f-  - ■■  ■ f ' „Tr^»TRj 


. 'i  '■  r ‘ ■'  .'ll  ■.  ' "iv*  ' .'■'tV^  ' , ! " . 

A . •«  V Ai  ft  1 t 1 , ^ . . “ • .£  ? V ■ ,,#1  t'  r!f  » I ^■,  ' 


^ Xxci:i  ^i^mt^v-..  ' ■ ■"  ''  ' " ' ‘ '' 


1.-  1 ' ^ i ■ „■  iXiP^ 

. ■ 'li'^'ri  ■.’='  ■"•'■  / .;■' ■' )Wi • ‘'rim 

. .♦.I-  ,■  ■••,■.  v« , . i *^'\  A ■',  / ■■  \ .?/j  ’,  , •x-^.liip;l 


Germany  realized  that  the  action  of  Great  Britain  was  in 
accordance  with  the  principles  of  international  law.  On  Fehruary 
6;  the  former  issued  a subsequent  decree  which  repee^led  the  former 
provision  requiring  that  grain  and  flour  should  be  delivered  to 
certain  organizations  under  the  direct  control  of  the  governn.ent. 

Had  other  circumstances  been  normal,  this  repeal  would  put  food- 
stuffs back  in  the  list  of  conditional  contraband.  But  other  cir- 
cumstances were  not  normal.  On  September  1914  the  German  cruiser 
Karlsruhe  sunk  the  Butch  vessel  Mari a which  was  carrying  a cargo  of 
grain  from  California  to  Dublin  and  Belfast,  The  Germans  did  this  / 
Without  examining-  whether  the  commodity  was  desined  for  the  British 
government  or  not.  Therefore  the  British  government  "felt  that  the3' 
would  be  justified  in  adopting  m.easures  or  reprisa.ls,  if  necessary, 
by  declaring  foodstuffs  to  be  absolute  contraband.” 

(s)  Fleprisals  AgeAnat  the  Destruction  of  Hospital  Ships.  - 
The  German  authorities  declared  that  they  had  secured  conclusive 
proof  that  in  several  instances  the  enemy  hospital  ships  were  often  ' 
being  misused  to  transport  munitions  and  troops,  "They  also  state 
that  they  have  placed  these  proofs,  through  diplomatic  channels, 
before  the  British  and  French  governments,  and  have,  at  the  same 
time,  declared  that  traffic  of  hospital  ships  on  the  military  route^i 
for  the  forces  fighting  in  France  and  Belgium  within  a line  drawn 

between  Flamborough  Hean  a.nd  Terchelling  on  the  other  hand  and  from 

36 

Ushant  to  Land's  Head  on  the  other,  will  no  longer  be  tolerated.” 

The  British  government,  however,  announced  that  they  had  not 
received  such  notice  through  diploasatic  channels,  or  otherwise,  froi: 

36 

Naval  War  College . Internati onal  Law  Documents . 1918,  90 


?6 

the  German  government.  The 3^  also  denied  strongly  that  British 
hospital  ships  had  been  employed  in  transporting  munitions  and 
troops.  According  to  the  principles  of  the  Geneva  convention  re- 
garding maritime  warfare  "belligerents  have  the  right  to  search 
hospital  ships."  Thus  the  German  government  had.  a remedy  if  the 
hospital  ships  were  suspected.  But  it  is  a matter  of  regret  that 
the  Germans  never  utilized  such  remedy.  Looking  at  the  German  sta1& 
merit,  it  is  quite  clear  that  the  German  government  had  the  intention 
of  violating  the  usa.ge  of  war  and  the  principles  of  international 
1 aw . 

Owing  to  these  circumstances,  the  British  government  was  com- 
pelled to  request  the  United  States  government  to  inform  the  German 
government  that  she  had  decided  that  if  the  German  policy  was  car- 
ried out,  reprisals  would  be  irmnediately  taken  by  the  British  a.uthc^' 
ities  concerned. 

This  Was  simply  a threat;  but  the  threat  became  a fact  when 

the  Germans  continued  to  sink  British  ships.  "A  large  squadron  of 

British  and  French  aeroplanes"  says  Professor  Garner,  "again  raided; 

the  town  of  Freiburg  as  an  act  of  reprisal  in  consequence  of  the 

attack  of  German  submarines  on  British  hospital  ships  in  violation 

39 

of  the  Hague  convention,"  This  happened  in  April  14,  1917. 

(9)  Repriss.ls  Against  the  Use  of  Gas.  - In  one  of  the  Hague 
Declarations,  1699,  the  powers  exce^r-t  Gres,t  Britain  and  the  United 
States,  agreed  to  prohibit  the  use  of  projectiles  solely  intended 
to  spread  asphyxia, ting  or  noxious  gases.  Great  Britain  finally 
acceded.  It  is  interesting  to  note  that  all  the  comba.tants  in  the 
early  part  of  the  World  War  had  ratified  and  had  not  subsequently 

3S 

Garner,  Internati unal  Law  and  the  World  War . 4S0 


J 


•77 

denounced  this  Declaration. 

Notwithstandingly,  according  to  the  Report  of  the  Belgium 
Commission  of  24  April  1915,  Germany  ”in  Belgium  and  France,  and 
also  in  conjunction  with  the  Austro-Hungarian  troops  in  Galicia 
and  Poland,  made  use  of  gases  apparently  composed  of  Chlorine,  for- 
mal vapour.  Nitrous  vapour.  Sulphurous  Anhydrite  and  others  in 

40 

■bornhs  shells,  tubes  and  other  methods,"  Turkey  also  used  asphyx- 
iating gas  in  fighting.  These  gases  not  only  asphyxiated  but  caus-  ; 
ed  great  suffering  to  those  who  inhaled  them.  Their  use,  therefore  I 
besides  violating  the  Hague  Declaration  was  in  d-irect  contradiction 
to  the  principle  of  the  Declarg.tion  of  St.  Petersburg,  1668,  and  to: 

the  provision  of  Haeue  Regulations,  paragraphs  (a)  and  (e)  of  arti- ; 
41 

cle  23,  Under  this  condition.  Great  Britain,  France  and  Russia 

were  "forced  in  self-defence  to  resort  to  the  same  methods  of  war- 
42 

fare  , 

(lO)  Reprisals  Against  the  Refusal  of  Quarter,  - It  is  contra- 
dictory to  the  usage  of  modern  war  to  resolve,  in  hatred  and  revenge 
to  give  no  qucirter.  No  one  in  command  of  a body  of  troops  has  a 

right  to  declare  that  it  will  not  give  and  respect  quarter,  Quarter 

43 

can  only  be  refused  under  two  conditions,  first,  when  some  conduct 


40 

Hall,  International  Law , 539,  and  N,2,  on  the  same  page 

41 

The  Peace  Conference  at  the  Hague  - Law  a,nd  Customs  of  War  - Sec- 
tion II  On  Hostilities  - Chapter  I Of  means  of  injuring  the 
Enemy,  Sieges  and  Bombardment  - Article  23  provides  "Besides 
the  Prohibitions  provided  by  special  conventions,  it  is  es- 
pecially prohibited  (a)  To  employ  poison  or  poisoned  arms; 
Te)  To  employ  arms,  projectiles  or  material  of  a nature  to 
cause  superfluous  injury 

42 

Foulke,  International  Law,  261.  N.5 

43  " 

Naval  War  College . International  Law . (2d  Edition),  93 


i ^ nj 


■:vm 


I h _ ^ 

-,  „.  '-‘y •!■'»=■.  . f 

V.  I ’ 


m 


'm 


Ml. 


.t'J 

^ * t ^ y > 


V.  ’ % 


i 


■‘4*  *■*'  ■"'  ' ^'  . “V.---  -*t.  'a  ^ 't  - .'^t  ‘ ^ *^'i 

•*.,  ■ r.-ifevicA : ■ 


1 r**- .s  • *-r  W . : *’  . ,t'i4/ri'«.  . :.  ' • : ‘-T 

V'-„-A;'  ,'•■>$>»  :•»* 

''rf 

*'  -jir  *'  ‘ t ^ • ■’  '-<j • I • ■■*  4'^  tW® 

1 '■'*!•  ^ " >'  ■ -mi  i ’ ' ^ ' 'vLVyr^ 

I ~ ■ 1 * ' J4i  '*  -'Ti  ‘ .♦  r^ / ’ff.H.t  ''^irP’' ' *' ' 


#vf 


- V'  ■ *•  ' ' „ a, 

'U  ri;  'V  i^^;^  t 


H!i 


t'l  af-itiL  fr  .-•  '-^b  i:>.%  v 

I - . . .... : :, 


•faj 


I 


'j?'.'.0>r 


- - >- 


1^  ' 


■',  .» •( 


JIW  ^.1 


E'iii':  'it*.*-.. 


y*.''  ‘."^  r,  J5i''."'  ■■.-'ii?  •' 


73 


on  the  part  of  the  enemy  is  in  gross  violation  of  the  laws  of  war; 
secondly,  when  the  condition  is  such  that  it  would  be  impossible 
for  an  armed  force  to  be  encumbered  with  prisoners  without  danger 
to  itself.  In  the  first  case,  the  refusal  of  quarter  might  be  done 
by  reason  of  reprisals.  Thus,  during  the  American  Civil  War,  when 
the  Confederates  violated  the  laws  of  war  by  refusing  the  grant  of 
quarter  to  the  negro  C3.ptives  who  had  been  enrolled  in  the  Union 
army,  the  Union  government  at  once  threatened  the  former  that  the 
same  treatment  would  be  extended  to  the  Confederate  prisoners  if 
their  government  did  not  abandon  the  policy.  In  the  second  ca.se  the 
refusal  of  quarter  is  justifiable,  for  when  the  prisoners  are  en- 
tirely under  the  disposal  of  a belligerent,  he  will  surely  not  run 
a risk  of  exposing  his  own  soldiers  to  the  danger  of  massacre.  This 
has  been  mentioned  in  the  instructions  for  the  government  of  the 
armies  of  the  United  States.  It  has  been  since  then  practiced  by 
the  world. 

CONCLUSION 

In  conclusion,  in  the  first  chapter  we  learned  that  reprisals 
are  measures  of  rets.liation  adopted  by  a stcite  by  imposing  pressure 
on  another  state  for  the  redress  of  a wrong  done  by  it  or  by  its 
subjects;  and  that  reprisals  differ  from  retorsion  in  the  fact  that 
retorsion  is  retaliation  in  kind  and  its  application  may  be  confin- 
ed to  political  differences  while  reprisals  consist  in  seizing  the 
goods  or  trade  as  a compensation  for  the  injury  received  and  their 
application  may  be  confined  to  legal  differences.  Reprisals  may  be 
classified  into  negative  and  positive,  active  and  passive  reprisals 
private  and  public  reprisals,  and  special  and  general  reprsials. 


fcvVtuf 


T V. V ■ Tjfi'-.Jsi!  8 ?*ip  ,1:;  •'-■>  A .'f'l'  i \i>T^; 


i >1<  '{iif  . \roai:79':ii'i  '&!m 

c.vi&  -:£f , «, 

}^3i£ia*!fe*- ; r*  :■' ^^  : ' -381 


79 

In  the  second,  chapter.,  we  discussed  reprisals  as  survivals 
from  Greek  Androlepsia,  We  also  pointed  out  that  reprisals  had 
'oeen  practiced  with  certain  restriction  during  Macedonian  supremacy;! 
that  they  were  regulated  "by  express  treaties  or  corriTnercial  conven- 
tions when  the  relation  oe tween  European  states  'oecaine  closer. 
Moreover,  in  the  later  period  of  the  Roman  Empire  the  practice  was 
seriously  prohibited.  During  the  middle  ages  and  even  in  the  moderr, 
times  to  the  end  of  the  eighteenth  century,  states  used  to  grant 
"Letters  of  Margue"  to  their  subjects  who  ha-d  been  injured  abroad, 
but  in  the  modern  period  special  reprisals  have  been  displaced  by 
general  reprisals  by  which  right  of  reprisals  are  particularly  re- 
served for  the  central  government  alone. 

In  Chapter  III,  we  exainined  reprisals  as  a forcible  means 
short  of  actual  war  for  putting  stress  upon  a nation  during  contro- 
versy, We  found  that  reprisals  are  preferable  to  war  for  two 
reasons;  in  the  first  place,  the  goods  seized  by  a belligerent  in 
tijoe  of  War  are  good  for  prize,  while,  on  the  other  hand,  goods 
seized  by  reprisals  are  restored  if  peace  shauld  continue,  and  in 
the  second  place  after  the  reparation  of  injury,  a revocation  of  the' 
Letters  of  Marque  or  reprisals  may  restore  peace  without  the  delay,  ; 
difficulties  and  ceremonies  of  a treaty.  Reprisals  may  produce  a 
psychological  effect  upon  states;  for  by  fear  of  reprisals,  arbit- 
rary action  of  a state  may  be  checked  down,  and  reprisals  are  efiedJt, 
ive  means  for  a state  to  prevent  another  state  from  passing  against 
her  discriminated  legislative,  administrative  and  judicial  acts. 

In  Chapter  IV,  we  observed  that  rex:>ri3als  are  admissible  in 
international  delinquencies,  or  in  case  of  self-help  under  the 
pressure  of  absolute  necessity,  or  for  the  protection  of  citizens 


»>. 


, -—XT.  . -V  ■ 'tS* 

■■i^-^-,1 


. VK'jie  = •■  <■  ,.  '|!^f^:.J[«  ■RV^^«,s4c'Wj6'l  o,t;.*(fi  V-Wi ' !})• 


:fl  ... 


, ' • /•'•  '’tMI  ‘ 4 r ■ . • V,.3fe’^jl 


Mif 


' . ’ d ■'  I.  ^ '' * •'!  • ’ 'f'  ’ ^ A' 

' ’’  ■♦“'.■•  ';*'*'  . - ■ ^ -■  '■  ''  *•  '•  »'  * V ' • :'  ':•  • 

•..'  A f.  f n ‘ ^ m k a . f a.  I » k k lA.  ^ 


«rf»-v...||.-  . *«[  -V  H .•’:<  , '; s ;.>:^  . • ■ . ». . ■■;' .<»•'  .•  A . at  ■.  n 

■ ';  ! ?4  'i- i,<.-V '■t.'Vf'‘i>>-,.  sIj  ,.Xf>% 


* ?, 


!i. 


. I . ' • -.  .'  r^'  • M I'f  i - k •■  ..  ‘ ‘t  ■ ^ ,-  U A Jrt.  > kkir'  A-~  k.  .t'  i 7.^  r . I f 1 i.'-  . I £^-  u’  ■•  .''t 11^  1:. 


■■  ^ 


' V 


. .'  • - 4^' :/  #•■'  f •;■  V : . /'ifl^i^j.' 


bO 

atjroad  on  account  of  mal-treatment , or  in  case  of  a denial  of  juat- 
ice  or  a refusal  of  rerjaration,  or  after  a contract  is  violated,  or 
when  hostil  embargo  or  hostil  tariff  has  been  laid  down  by  a state 
against  another  state.  Reprisals,  however,  ought  to  be  preceded  by 
negotiations  and  stopped  when  reparation  is  made,  and  pressure  plac- 
ed upon  the  offending  state  inust  not  be  mere  severe  than  the  injury 
received  by  the  offended  state.  Present  practice  and  the  law  of 
nations,  permit  privateering  or  private  war  by  sea  only  in  times  of 
war  never  in  times  of  peace,  and  to  take  private  property  as  secur- 
ity for  the  reparation  of  public  wrong  is  indefensible  unless  it  is 
done  by  way  of  reprisals,  and  especailly  to  confiscate  a loan  pay- 
able to  private  subjects  by  way  of  reprisal  in  time  of  peace  is 
unjustifiable. 

In  the  last  chapter,  we  saw  that  if  the  established  usages  or 
laws  of  war  were  violated  by  one  belligerent,  his  adversary  has  the 
right  to  retaliate  by  the  same  or  similar  act  for  the  purpose  of 
preventing  furthur  excesses;  that  prisoners  of  war  are  liable  to 
punishment  inflicted  by  way  of  reprisals  and  that  a person  who  h9.s 
been  seized  by  way  of  rex^risals  as  hostage  ought  to  be  treated  a,s 
prisoner  of  war  except  that  escape  may  be  prevented  by  closer  con- 
finement, Reprisals  inflicted  upon  a civil  population  in  order  to 
prevent  the  enemy  from  carrying  a proper  and  legitimate  act  of 
hostilities  are  unjustifiable,  but  rev)risals  against  non-combatants 
who  participate  in  fighting  are  justifiable  though  collective  penal- 
ties for  the  acts  of  individuals  are  to  be  condemned.  The  bombard- 
ment of  undefended  towns,  villages,  buildings  or  places  of  no 
military  importance  is  entirely  undefensible  and  if  it  is  done  by 
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form  of  reprisals.  Private  debts  cannot  be  confiscated  in  time  of 
War  though  private  property  can  be,  and  shares  and  stocks  owned  by 
enemy  aliens  are  not  confiscable  though  the  payment  of  dividends 
may  be  suspended.  Reprisals  are  justifiable  when  they  are  made 
against  aerial  attack,  the  unlawful  use  of  mines,  the  extension  of 
contraband  to  foodstuffs,  the  destruction  of  hospital  ships,  the 
use  of  gas  and  the  refusal  to  grant  quarter. 


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